Whistleblower – Federal Government and Federal Government Contractor Fraud
A large percentage of the United State’s enormous annual spending goes to development and implementation of new weapons systems, facilities, equipment, supplies, and logistical and technical services through the procurement of government contracts. Such government contracts frequently involve military defense contracts such as B-1 Bombers, military tanks and vehicles, military fire power and uniforms, and extends to areas such as computer technology and food services for our troops. Defense contractor fraud remains one of the most prominent areas of false claims litigation under the Federal False Claims Act. In April 2009 TRW Inc.’s efforts to stop a scientist from revealing his research findings about faulty electronic components the company sold to the government for military and intelligence-gathering satellites were the basis for a whistleblower lawsuit that Northrop Grumman Corp. settled for $325 million. It was the largest settlement ever paid by a defense contractor in a whistleblower case and the second largest ever paid involving defense contractor fraud.
The whistleblower was awarded $48.7 million for his work and the work of his attorneys on the case. The Federal False Claims Act requires the government to award whistleblowers 15 to 25 percent of the amount the government recovers as a result of whistleblower cases.
A false certification of regulatory and statutory compliance, necessary to obtain a contract, can render false all claims for payment under that contract. A contractor’s failure to meet contract performance requirements and failure to provide goods and services in conformance with federal statutes and regulations may be sufficient to violate the False Claims Act.
Presentation of a claim to the Government for payment, when the failure to abide by contract requirements has not been disclosed to the Government, is deemed equivalent to false certification of compliance with such laws and regulations. Therefore, if a claim for payment is submitted and the contract requirements have not been fulfilled in all respects, if federal funding is conditioned on compliance, gives rise to a False Claims Act case. Claims may be false, even though goods or services otherwise fulfill contract specifications.
Defense contractor fraud remains one of the most prominent areas of false claims litigation. Billions of dollars have been recovered from defense contractors, mainly as a result of whistleblowers. Some common ways in which defense contractors have tried to defraud the government are as follows:
1. Cross-charging. This occurs when a defense contractor improperly shifts costs and expenses from one defense contract to another in order to boost its profits.
2. Improper Product Substitution. Contracts frequently request the contractor use a specific grade or quality of product or part. There are often requirements that the products be new or made in the United States. Defense contractors often attempt to save costs by substituting cheaper or substandard parts.
3. Improper Cost Allocation. Under this scheme the defense contractor will improperly allocate or shift cost from private businesses or foreign governments onto the cost-plus contracts they have with the United States government.
4. Worthless or Substandard Products or Services. In this case the defense contractor with knowledge or through reckless neglect, delivers products that do not perform as promised.
5. Inflation or Costs and Charges. In a cost-plus contract, the government pays the defense contractor a set price plus a percentage of the contractor’s costs for producing the product. In this scheme the contractor improperly inflates their costs and charges to increase revenue the company earns from the U.S. government.
6. Violations of the Truth-In-Negotiations Act. Weapons systems and equipment can be extremely complex. Much of the time, there is only one company in the world producing a particular weapon system or piece of equipment. The government has no choice but to purchase the particular weapon system or piece of equipment from a single supplier. Because other competitors are not bidding, the government has no way of knowing if it is paying a fair price. The Truth-In-Negotiations Act is designed to prevent this problem by requiring defense contractors to disclose all relevant information about its costs to the government in such situations. Defense contractors may sometimes attempt to inflate their costs and expenses because they have no competitor bidding for the contract.
Divorce sucks (a view from the trenches) – Part V
Trial Strategy – Constructive or Nonproductive
Throughout the tenure of a divorce or custody suit, strategies are employed to improve the strategic position of a spouse before the court or a civil jury.
A non-all-inclusive list of such pursuits of a spouse and his or her attorney may include the following non-productive trial strategies:
- False claim of child abuse – frequently attorneys and/or their clients will make artificial or transparent claims of child abuse either directly to a jury in a trial or through the filing of a frivolous Child Protective Services complaint. Such ineffective claims may include claims of physical abuse (when in truth is a properly administered and appropriate corporal punishment for grievous conduct dangerous to the child), false claims of injury (whether it be normal scrapes and bruises occurring from play, garden variety accidents all children have, or fractures to the arm or leg occurring through no real fault of either spouse). Frequently, the claims are exaggerated with photographs and close up shots and, on occasion, artificial support from the minor child through the coercion of a spouse. Jury’s are very resentful of this approach and will hold the party asserting such frivolous claims accountable at the end of the day.
- False claims of alcoholism, substance abuse and/or prescription drug excess – painting a picture of a spouse as an alcoholic or a danger to his or her child based on a glass of wine at an Italian restaurant is frequently a ploy attorneys will use given great social resentment to alcoholism, DWIs and general drug abuse. Certainly, if the abuse is real the claim is valid and is constructive. However, frequently clients will exaggerate social alcohol consumption that is reasonable and is looked upon by the jury as a waste of their time and they will frequently hold the party falsely alleging such abuse accountable.
- WAR by financial attrition – if there is insufficient community property to adequately fund both sides of a divorce, one spouse may use outside sources of income in the form of family loans, gifts, spend thrift trust disbursements or other disbursements from relatives to financially bring the opposing spouse to his or her knees and demand agreement to terms that are unreasonable and not productive for the underfunded spouse or the children of the marriage. Regrettably, the divorce process is part of the adversary system of justice and leaves this unfair loophole open in such circumstances. Though not outright unethical, such conduct and strategy does not pass the smell test.
- Cookie cutter witnesses – preachers, rabbis, soccer coaches, parents, grandmothers, grandfathers, brothers and sisters generally bring a yawn from the jury or the court. If their testimony is direct, short and fact driven on an important core issue in a divorce or custody suit, they are necessary. In general, the jury’s perspective is, “what do you think a preacher, grandparent or soccer coach is going to say about the child in their care…that the mother or father they support are bad?”
- Use of the children as spies – attorneys or clients that use the children to spy and give testimony before a court or jury almost always fail in their goal. Most judges and a majority of juries are highly resentful for bringing minor children into the fray and such a strategy is doomed to backfire before the judge or jury. Clearly, if a relatively mature child is the ONLY source of information that is core to the case and IF there is no other third party professional or other source to support the issue, sometimes the testimony is necessary. This is especially true in cases of real abuse, parental alienation and other destructive conduct that is fundamental to the issues of the case.
Productive strategies:
- Here is a novel idea. How about truth and sincerity. It has been this writer’s experience that a jury will give some ear to experts, social workers, teachers, coaches, doctors, preachers and other witness with personal knowledge. Inevitably, the final result is driven by the truth and sincerity of the spouse testifying. With predictable regularity a jury will make their decision based squarely on the shoulders of the spouse testifying and the honesty and forthrightness of their testimony.
- Experts – psychologists, psychiatrists, social workers, doctors and other professionals will be given credibility to some degree by a jury IF their opinions are based on acceptable, acknowledged predictable science and IF they have spent sufficient time with the minor child and/or both parents to render a believable opinion. Rent-an-expert’s testimony is disdained by most juries and seen for what it is – as an opinion for hire. The longer the relationship between the testifying expert and the minor child, the greater the likelihood will be that the opinion is fairly received and considered by a court or jury.
- Election by a minor over 12 years of age- any child over the age of 12 may sign an election (affidavit) of their preference of primary caregiver. The courts will strongly consider these elections and in the large number of the cases make a decision based on the child’s wishes. Juries will favorably consider such elections so long as they are based on believable facts and parental propriety. However, the securing of such an affidavit when in conjunction with a new car, a new wardrobe, or a loose, undisciplined parental attitude towards control of the child will result in the opposite of what the spouse seeks in obtaining such an election. The elections are not binding on the court, but if they are legitimate and based on fact, they are highly cogent evidence which the court and the jury will strongly consider.
- Depositions of paramours, IRS agents, psychologists, doctors, ex-wives, employers, secretaries, etc. – well thought out, terse, and to the point testimony on facts that support a claim revealed in depositions is far more effective than hearsay or other testimony that is not likely to be received well by the jury. It is important that such deposition testimony be short, to the point and dispositive of a real issue in the case.
The above is not an inclusive list of strategies employed during the divorce proceeding, however, if properly employed or excluded may be instrumental in a positive result for the client during this very difficult time.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Seriving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Divorce really sucks (a view from the trenches), Part IV
Communication Traps and Client Myths
Even in the best of circumstances, the divorce process is an emotionally traumatic event which gives rise to several myths to be recognized and avoided during the tenure of a divorce. A non-exclusive list of pitfalls to avoid include the following:
- A husband or wife should take great care to address their feelings directly as to what is occurring and avoid projecting those feelings on to others, especially with regard to family, friends, attorneys, counselors and others involved in the process. Spouses should take great care to remember that they are not married to their counselors or legal representatives, but it is very easy and emotionally convenient to feel “all of this money I am losing and all of these fees and pain are my lawyer’s fault” or “the opposing lawyer’s fault.” Certainly, as with all occupations, trades or work, there are some disreputable attorneys who will exploit an emotional trauma for gain. By and large, however, extensive expensive divorces at some point inevitably result from the lack of emotional acceptance of the spouses of the process, their own feelings, and the simple truth that a good deal of pain and grief must be dealt with before the matter may be concluded.
- “Life can remain stable and normal during a divorce.” In some rare cases and to some degree this can happen. However, in the vast majority of divorces, failure to address the pain and grief inevitable in divorce will only repress the truth of what is occurring and the grief and pain will return at some time in the future. A more constructive approach is to directly address one’s feelings, pain, and dissolution of the property estate as fully as possible during the process. Psychological counseling is extremely productive during this process.
- “I just want it over!” “I just want out!” Issues that are not fully resolved in the divorce process will return. Denial results in post-divorce modifications, post-divorce custody suits and post-divorce clarification proceedings which frequently are more expensive in attorney’s fees and lost time from employment than what the total amount of the cost of the divorce would have been had these issues been directly addressed and resolved.
- “I want to take him/her to the cleaners!” This approach denies basic law of dissolution and is an unscrupulous lawyer’s dream come true. In truth, there are no victors in a divorce. Regardless of the facts or egregious circumstances, there are no winners. If the emotional aspects of a divorce are addressed properly and therapeutically and if acceptance of the dissolution occurs quickly, there may however be survivors, not the least of which are the children of the marriage.
- “It was all my fault.” There are many divorces where fault is substantially placed, and should be placed, on one of the spouses. However, in the vast majority of divorce cases, the simple truth is both spouses share in the blame, not the least of which was the original decision (poor judgment) to enter into a relationship that may have been doomed form the beginning. Denial of this type results in poor decision making regarding placement of the children, possession periods, the amount of child support and other issues which inevitably arise again in the future resulting in attorney’s fees and expenses well in excess of what they would have been if true feelings had been dealt with at the time of the original divorce.
It has been this writer’s experience that, but for extremely rare exceptions, anxiety and/or depression will occur while the grief reaction runs its course. If the spouses have accepted the emotional divorce, the result is frequently depression. However, depression can be dealt with clinically and with medication. Depression while dehabilitating will pass in time as the grief reaction runs its course and with the help of coping skills learned or used to expedite the process. If the parties have not accepted the emotional divorce, the inevitable result is chronic and habitual anxiety. Anxiety is the killer. It has no beginning and no end and undermines the real issues in the divorce, working with the children for an understanding transition, employment and other life needs and beliefs. With proper acceptance, guidance and counseling, although there can be no winners, there certainly can be survivors and a relative fresh start. A broken home, free of depression and anxiety where the children understand that they have not been divorced but are in a new environment where they have two loving homes free of anxiety and depression, is infinitely better, healthier and more productive to their development and self-actualization as they become adults than a chronic anxiety-filled life wherein two spouses contaminate the nuclear relationship with denial, anxiety and discontent.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving clients in the Dallas – Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
Divorce really sucks (a view from the trenches) Part III
Psychological Impact Of Marital Dissolution On The Nuclear Family – or
Divorce Wars/Legal Strategies and Myths
The cost, effectiveness, pain, and complexity of a divorce is frequently directly related to that point in time in which the man and woman accept an emotional divorce. Generally, the divorce commences at the time of the filing of the petitioner’s original petition and ends, absent appeal, thirty days following the entry of a final judgment of divorce. The emotional divorce, however, may occur prior to the commencement of the action, during the commencement of the action, or following entry of a final judgment. Likewise, the emotional divorce may be accepted prior to the commencement of the action, following the filing of the original petition or after entry of a final judgment. Although there are a number of cases in which fault primarily rests with one spouse, experience has shown that emotional acceptance, in the vast majority of divorce cases, can only occur when both husband and wife accept partial fault. In other words, at the core of all marital disputes is the unrecognized and repressed reality that both parties may have made a poor judgment in electing to commence the marital compact in the first place.
Absent adult and real emotional acceptance of some level of partial responsibility for failed judgment, divorce wars can evolve primarily to establish who is “wrong” or “responsible” or “at fault” and generally lead to higher costs, attorney’s fees, expense, expert fees and other strategical expenses necessary to fully put forward the position of the client. The ammunition employed by the attorney on behalf of the client is available from a number of categories, including temporary and, in some cases, post-divorce alimony, asset distribution, asset allocation, child support, possession periods with the children, holidays with the children, payment of attorney’s fees, depositions, document discovery and analysis, psychological evaluations, drug testing, etc.
If, in fact, the emotional acceptance of the dissolution has occurred prior to or relatively near commencement of the divorce proceeding, it is much simpler and emotionally constructive to address the underlying core issues in the divorce more quickly and effectively. Those issues in a relationship with children, blended or otherwise, should and frequently do in an acceptance situation, revolve around the best interest of the children and the constructive approach to an adult respectful resolution that takes into account the future stability and workability of the husband and wife and particularly the children to a relationship. Frequently, the key to a quick, more cost effective and therapeutic result is the employment of qualified counselors to aid the parties on this very difficult and complicated road that must be walked prior to commencing a different life following dissolution. When there are children involved, the sooner the parties recognize that though they may divorce one another they are not divorcing their children, the sooner the recovery process can begin. Regardless of fault, responsibility or other adversarial issues, for both husband and wife, there will be future soccer games, T-ball games, graduations, marriages, funerals, reunions and other social events which in all reasonable probability, they will both be in attendance. So long as both spouses place the best interests of the child above their own best interest, in a large majority of the cases, regardless of who is at fault, a reasonable and cost effective result may be expeditiously accomplished.
The Nacol Law Firm PC
>Law office of Attorney Mark Nacol
Serving clients in the Dallas – Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
Divorce Really Sucks (a view from the trenches) Part II
Psychological Impact Of Marital Dissolution On The Nuclear Family – or
How does divorce make you feel?
Why do marriages fail? This writer has noted that there are a number of reoccurring causes for failure of the marital relationship. Among them, a nonexclusive list of these causes are:
- Control issues. Clearly unwanted control of the marital relationship from this writer’s view is the most dominating cause of marital failure. Control can be mental, physical or emotional. It can extend to who manages the marital estate, who has decision powers or input regarding asset acquisition and who shares information that goes to the core and lifetime issues of a marriage. Control is also impacted by simple unsolicited power – who manages the feelings of the husband and wife; are there limitations or artificial prerequisites to expressing feelings; are there false expectations; are there abuse issues. Abuse issues can be mental or physical. Although physical abuse is the most reported, clearly emotional abuse is an overwhelming reason for divorce as it relates to control of one spouse over the other.
- Outside forces. Parents, grandparents, great grandparents influence on the marital relationship, separate estates, proceeds, trusts, lands, stipends, independent wealth issues, religious issues, and step-children issues. Frequently, in blended families, step-children, children of the half blood, adopted or otherwise can be a crowning achievement for the blended family or a death sentence to its continuation. Although men and women wish, choose, and strive to accept another person’s child as their own, and in many cases are extremely successful in that regard, more often than not, artificial and unrealistic expectations of one spouse as to the other spouse’s attitude toward his or her children disrupt the marital relationship and place the non-blood spouse in an impossible position. Children of another marriage are frequently, depending on age and maturity, excellent adept manipulators of this difficult situation, sometimes terribly aggravating the problem and accelerating the breakdown of the marriage.
- Adultery. Adultery, though a cause of divorce, is almost always a symptom rather than a cause. People seek escape from stress, control, abuse, alcoholism, etc. both male and female, and often adultery (if not obsessive or compulsive) is a mere anesthetic and self-medication for feeling bad. When the emotional divorce has not been accepted, when the relationship has devolved into anxiety, depression, or high stress levels, people seek relief from those pains in others.
- Addiction. Alcoholism, drug abuse, gambling addiction, illicit sex addiction all contribute to and are conducive to a failed marital relationship. By far, alcoholism is the highest and best candidate for failure in the view of this writer. However, any form of addictive behavior which places an addictive person’s type of conduct or activity in the center of a relationship, at some point and time in the future, is dooming the husband and wife for the divorce lawyer’s office. There have been remarkable strides in treatment in recent years. There are rehabilitative, medical, and therapeutic answers to many of these issues that did not exist in the past. Still, without exception, there must be a full acceptance of the addicted person of his or her problem for these therapeutic means to result in an acceptable end.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving clients in the Dallas – Fort Worth Metroplex area for over 30 years
Tel: 972-690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
