Interpreting the Florida False Claims Act

This page is the third section of an interview between Gary Farmer, a Florida False Claims Act attorney, and Tony Munter, a whistleblower attorney in DC. Below, they discuss issues with the way the Attorney General has interpreted the Florida False Claims Act. (Click here for Part 1 and Part 2). Tony Munter is NOT licensed in the jurisdiction of Florida.

Tony:  You were saying that you had an issue with an interpretation of the language of the State False Claims Act being made by the Attorney General.
Gary: Yeah.
Tony: So I want to give you the opportunity to discuss that?

Gary: So basically Chapter 68.084 subsection (1) of the statute says once the case has been filed by a private person, the state can intervene if they want. And then 68.084 subsection (2) says the state can dismiss the case at any time. Then subsection (3) says if the state has declined to intervene then the Relator has the right to proceed with the action. So my interpretation and every lawyer with whom I’ve ever discussed this issue and every legislator by the way when this issue was before them a few years ago all believe that that language meant that the language in subsection (2) about the state being able to dismiss at any time applies only to cases where it had intervened.

Tony: So your interpretation is that should you pursue the case after the government declines, they should not be in a position to suddenly wake up and decide to dismiss the case from under you.
Gary: Correct. And that’s born out by – just as a matter of statutory construction, subsection (2) only modified subsection (1), and section (3) comes after it and deals with a whole different set of circumstances and not intervention versus intervention. So the statute alone I think supports our argument. But when you then consider the other element, that if they want to intervene after they’ve declined they have to file a motion seeking permission, and have to show good cause and can’t do anything to the detriment of the private Relator…
Tony: Yes. If they need good cause to intervene shouldn’t they at least need more than that to dismiss the case? That seems a little bizarre.
Gary: Absolutely.
Tony: Did that happen?

Gary: Yes, and so I’ll tell you the story. Remember too before I tell you the story the statute also says that the rules of State civil procedure apply. So in our case, our client a guy by the name of Barati. He is a scientist for Motorola or was. Motorola has an $8 million contract with the State of Florida to upgrade and modernize and really totally revamp the State’s fingerprint identification system. So really important system, really important contract used by all of our law enforcement and by Department of Children and Families for child abuse, background screen, all that kind of stuff. Long story short, we alleged Motorola falsified under oath five different progress reports indicating that the system was meeting certain milestone tests in order to get its progress payments under the contract. In fact, the system wasn’t working at all. I shouldn’t say it wasn’t working at all but it had glitches. It was locking up at 20% capacity. It was kicking out false-positive identifications. There were problems. Our Complaint alleged Motorola lied to get its money. It got so bad that a French company came in and bought this division of Motorola and then the state had to pay another $5 million to the French company to come in and fix what Motorola had done.

So we filed our whistleblower action. The Attorney General at the time did not ever meet with our client and us. As far as we know the Attorney General did a cursory investigation if any and then declined the case. Okay. Fine. We’re off to the races. I wasn’t involved initially. An attorney by the name of Dave Moye had the case initially but he then brought me in as co-counsel. So the case has been litigated, discovery, a couple of depositions, we defeat a motion to dismiss, defeat a motion for summary judgment. Now we’re on the trial docket, getting ready to go to trial. Case management conference is set for a few weeks before trial. The night before the case management conference, the Attorney General filed a document entitled Notice of Voluntary Dismissal.

Tony:  What?

Gary: Yeah. Purporting to dismiss our case.
Tony: I mean one of the things I should interject right here is it’s relatively speaking a rare thing to take a case from beginning to end in a False Claims Act matter of any kind. I mean to go to trial and to have survived the pleadings and the motions to dismiss to get to that point is basically a heroic effort.
Gary: Yeah.
Tony: For them to dismiss it at that point is shocking to me. I mean I can’t imagine that happening. I mean I can imagine a case being settled on grounds that you might not normally love, but for it to be dismissed. Did they provide any justification for this?
Gary: No reason whatsoever.
Tony: That’s pretty shocking to me and I hope it’s shocking to everybody else that the Attorney General’s office would take such an action on the eve of the trial. How long did you?
Gary: We worked on the case for three years or two and a half years after their declination and did discovery and spent money and you know.
Tony: Obviously that’s – well, I mean I don’t know how to put it except to say that that put sort of chilling effect, not sort of, it puts a chilling effect on private attorneys wanting to pursue a case after a declination.
Gary: Absolutely.
Gary: I don’t want you to be in the story Tony. But I would encourage you to do some research on our Attorney General, and in particular look for the New York Times articles… I mean, there’s a whole separate story about what’s going on in Florida, because it’s where Qui Tam cases go to die with the Attorney General.

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