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United States ex rel. Morsell v. Symantec Corp.

United States District Court, D. Columbia.

September 10, 2015

UNITED STATES ex rel. LORI MORSELL, Plaintiff,
v.
SYMANTEC CORPORATION, Defendant

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[Copyrighted Material Omitted]

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          For LORI MORSELL, United States ex rel., Plaintiff: Christopher Bowmar Mead, Lance Alan Robinson, Mark London, LONDON & MEAD, Washington, DC.

         For SYMANTEC CORPORATION, Defendant: Anne B. Perry, David Lloyd Douglass, Jonathan S. Aronie, LEAD ATTORNEYS, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, Washington, DC.

         For STATE OF NEW YORK, Movant: Daniel Smirlock, LEAD ATTORNEY, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, NY.

         For UNITED STATES OF AMERICA, Intervenor: Brian P. Hudak, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; David B. Wiseman, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Commercial Litigation Branch, Civil Fraud Section, Washington, DC.

         For STATE OF CALIFORNIA, Intervenor: Alexius Markwalder, LEAD ATTORNEY, CALIFORNIA DEPARTMENT OF JUSTICE, San Francisco, CA; Jacqueline Sue Dale, LEAD ATTORNEY, CALIFORNIA ATTORNEY GENERAL'S OFFICE, San Francisco, CA.

         For STATE OF FLORIDA, Intervenor: Russell S. Kent, LEAD ATTORNEY, OFFICE OF THE FLORIDA ATTORNEY GENERAL, Tallahassee, FL.

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          Re Document Nos.: 46, 54

         MEMORANDUM OPINION

         RUDOLPH CONTRERAS, United States District Judge.

         Granting in Part and Denying in Part Defendant's Motion to Dismiss; Denying the United States' Motion for Partial Summary Judgment

         I. INTRODUCTION

         In the course of her work at Symantec Corporation, Lori Morsell came to believe that her employer had violated certain contractual obligations to the United States. She subsequently filed this qui tam action

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as Relator against Symantec under the False Claims Act. The United States, California, and Florida intervened, and Relator elected to assert claims on behalf of New York. All plaintiffs filed a joint complaint. Presently before the Court are Symantec's motion to dismiss the complaint and the United States' motion for partial summary judgment. Because the United States adequately pleads all of its claims but California, Florida, and Relator fail to do so, the Court grants in part and denies in part Symantec's motion to dismiss. Because there are genuine disputes of material fact as to all issues presented in the United States' motion for partial summary judgment, the Court denies that motion in full.

         II. FACTUAL BACKGROUND[1]

         A. Negotiation of the Contract

         Symantec Corporation provides software and services in the areas of security, storage, and backup. See Omnibus and Restated Complaint and Complaint in Intervention (" Omnibus Complaint" ) ¶ 20, ECF No. 41. The instant dispute arises out of Symantec's negotiation and performance of a Multiple Award Schedule (" MAS" ) contract for supplying a range of products, licenses, and services to the federal government (the " Contract" or " GSA Contract" ). See id. ¶ ¶ 21, 55, 56.

         MAS contracts enable the General Services Administration (" GSA" ) to streamline federal government procurement by providing pre-negotiated maximum prices and other terms that govern all subsequent purchases covered by the contract. See id. ¶ ¶ 33-35. The GSA establishes federal regulations governing solicitations, negotiations, and contracts executed under the MAS program. See id. ¶ ¶ 39-52. These regulations prescribe standard questions contained in MAS solicitations, in response to which the offeror must disclose certain information in a Commercial Sales Practice Format, known as the offeror's " CSPs." See id. ¶ ¶ 41-42; 48 C.F.R. § 515.408 (MAS Requests for Information); id. § 515.408, fig. § 515.4 (Instructions for the Commercial Sales Practices Format). Additionally, an offeror seeking an MAS contract must provide information that is " current, accurate, and complete" as of fourteen calendar days prior to submission. See id. § 515.408, fig. 515.4. For their part, GSA contracting officers are required to " seek to obtain the offeror's best price (the best price given to the most favored customer)." Id. § 538.270(a). To this end, contracting officers must " compare the terms and conditions of the [offeror's response to the] MAS solicitation with the terms and conditions of agreements with the offeror's commercial customers." Id. § 538.270(c); see also Omnibus Compl. ¶ ¶ 31-52 (reviewing MAS regulatory scheme).

         In February 2006, in response to the GSA's solicitation for the Contract, Symantec submitted an initial offer containing its CSPs. See Omnibus Compl. ¶ ¶ 41, 58. Consistent with applicable regulations, the solicitation asked in Question 3 whether the discounts and concessions offered by Symantec to the Government were " equal

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to or better than [its] best price . . . offered to any customer acquiring the same items regardless of quantity or terms and conditions." Omnibus Compl. ¶ 59; CSPs, Def.'s Attach. A, ECF No. 46-1.[2] In response to this question, Symantec checked the box for " NO." Id.

         Question 4(a) directed Symantec to disclose information in the standard CSP format about its discounting practices. See CSPs, Def.'s Attach. A. To comply with this requirement, Symantec attached several charts. See Omnibus Compl. ¶ 61. One chart purported to describe the frequency of non-published discounts by magnitude for 2005 sales (" Frequency Chart" ). See id. ¶ 64.a. The Frequency Chart showed that in 2005, Symantec offered non-published discounts of over 40% only very rarely--less than 3% of the time. See id. ¶ 65. Moreover, the chart showed that in 0.02% of sales, Symantec offered discounts ranging from 91-100%. See CSPs, Def.'s Attach. A.

         The Frequency Chart, however, included numerous published discounts, in addition to the non-published discounts it purported to reflect. This erroneous inclusion of published discounts caused Symantec to understate the frequency of discounts above 40% (and, for the same reason, to inflate the frequency of discounts below 40%). See Omnibus Compl. ¶ ¶ 101, 102. Had the Frequency Chart included only non -published discounts, it would have shown that in 2005, Symantec provided non-published discounts above 40% over 20% of the time--not merely 3%. See id. ¶ 103. Symantec knew of the Frequency Chart's inclusion of published discounts, among other inaccuracies. See id. ¶ ¶ 108-12.

         A second chart purported to set forth the types of reasons for Symantec's non-published discounts and the frequency of each type (" Reason Code Chart" ). See id. ¶ 64.b. According to the Reason Code Chart, a sizeable plurality (47%) of non-standard discounts resulted from proration of service agreements and adjustments to enterprise license agreements, and Symantec offered non-standard discounts for " other" reasons not specified in the chart relatively infrequently--only 7% of the time. See id. ¶ ¶ 67, 68; see also CSPs, Def.'s Attach. A. A third chart purported to report the level of management approval required at various discount magnitudes (" Management Approval Chart" ). See Omnibus Compl. ¶ 64.c. For instance, according to the Management Approval Chart, all discounts greater than 50% required approval by a Regional Vice President. See id. ¶ 69.

         In actuality, however, both the Reason Code Chart and Management Approval Chart were inaccurate. The charts were generated using data from " eSPA" --Symantec's system for approving non-published discounts. See id. ¶ ¶ 81, 99.[3] In 2005, however, over 9,000 commercial orders receiving non-published discounts were not

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processed through the eSPA system. See id. ¶ 99. Accordingly, neither the Reason Code Chart nor Management Approval Chart accounted for these orders. Symantec knew at the time that eSPA was an ineffective system for monitoring discounts. See id. ¶ ¶ 100, 104-07.

         Question 4(b) asked whether " any deviations" from Symantec's disclosed policies and practices " ever result in better discounts (lower prices) or concessions than indicated." Id. ¶ 59; CSPs, Def.'s Attach. A.[4] Symantec responded " NO." Id. The February 2006 offer containing the CSPs was signed by Symantec's Senior Director of Public Sector Business Operations Kim Bradbury. See Omnibus Compl. ¶ 56.

         During the subsequent MAS contract negotiation, Bradbury submitted various materials to GSA contracting officer Gwen Dixon elaborating on the pricing offered by Symantec. In October 2006, Bradbury emailed Dixon a presentation purporting to give " an overview of new discounting policies and procedures for all products sold by Symantec Corporation" (" October 2006 Presentation" ). Id. ¶ 72. The October 2006 Presentation mentioned five buying programs--(a) Express, (b) Government, (c) Academic, (d) Rewards, and (e) Enterprise Options--along with the requirements for purchasing at different pricing levels or " bands" within each program. Id. ¶ ¶ 73-75. According to the October 2006 Presentation, in order to obtain Rewards program pricing, customers had to accumulate points based on the volume of their purchases and were required to make a minimum initial purchase amounting to 6,000 points. See id. ¶ ¶ 78, 79. The points, moreover, expired after two years. See id. ¶ 80. Bradbury also provided Dixon with documents stating that Symantec's " Government buying program" enjoyed a discount of 0% to 16% off of " Commercial MSRP." Id. ¶ 87.[5] Lastly, Bradbury averred that " [a]ny deviations from published discounts require management approval," and that " [d]eviations must be documented and approved in accordance with . . . guidelines," such as meeting competition and market segment penetration. Id. ¶ 90.

         These disclosures were allegedly false or incomplete. First, the " Commercial MSRP" that Symantec used as a baseline for communicating the offered discounts was derived solely from the Express program pricelist and did not reflect prices for all of Symantec's commercial customers. See id. ¶ 88. Symantec further failed to disclose to the GSA that pricing under the Rewards buying program was better than that offered through the Express, Government, and Academic programs. See id. ¶ ¶ 76-77, 85, 115. Symantec also did not explain how customers accumulated points, or how easily commercial customers could qualify for Rewards pricing by earning at worst one point for every five dollars spent. See id. ¶ 116. Symantec did not disclose documented exceptions to the Rewards program rules--the minimum initial purchase requirement, points needed to enjoy better pricing bands, and the two-year validity period for points. See id. ¶ 118. Lastly, Symantec failed to disclose any information about its rebate programs. See id. ¶ ¶ 62, 77, 123. Symantec had contemporaneous knowledge of all of these inaccuracies. See id. ¶ ¶ 119-26.

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          On January 25, 2007, Symantec sent Dixon its Final Proposal Revision for the Contract. See id. ¶ 93.[6] Symantec stated therein that " all commercial business practices have been fully disclosed and are current, accurate and complete as of the conclusion of the negotiation," and certified " that the discounts, pricing and/or rates given to the government are either equal to and/or greater than what is granted to any commercial and/or Government customer under similar terms and conditions." Id. ¶ 94. Symantec also proposed that the GSA receive these discounts off of published pricelists: (i) for hardware appliance, enterprise availability, backup executive, and security products and services, Symantec offered the GSA pricing at between 5% and 35% off of Government End User MSRP; and (ii) for training, professional, managed security, and technical support services, Symantec offered the GSA pricing at between 5% and 10% off of " Commercial MSRP." Id. ¶ 95. That same day, the GSA accepted Symantec's offer as revised by the Final Proposal Revision, thereby executing the Contract. See id. ¶ 96.

         Incorporated into the Contract is a standard mechanism known as the " Price Reductions Clause," which helps ensure that the GSA continues to receive favorable pricing and terms during the performance of an MAS contract. The Clause provides:

(a) Before award of a contract, the Contracting Officer and the Offeror will agree upon (1) the customer (or category of customers) which will be the basis of award, and (2) the Government's price or discount relationship to the identified customer (or category of customers). This relationship shall be maintained through out the contract period. Any change in the Contractor's commercial pricing or discount arrangement applicable to the identified customer (or category of customers) which disturbs this relationship shall constitute a price reduction.
(b) During the contract period, the Contractor shall report to the Contracting Officer all price reductions to the customer (or category of customers) that was the basis of award. The Contractor's report shall include an explanation of the conditions under which the reductions were made.
(c) (1) A price reduction shall apply to purchases under this contract if, after the date negotiations conclude, the Contractor--
(i) Revises the commercial catalog, pricelist, schedule or other document upon which contract award was predicated to reduce prices;
(ii) Grants more favorable discounts or terms and conditions than those contained in the commercial catalog, pricelist, schedule or other documents upon which contract award was predicated; or
(iii) Grants special discounts to the customer (or category of customers) that formed the basis of award, and the change disturbs the price/discount relationship of the Government to the customer (or category of customers) that was the basis of award.
(2) The Contractor shall offer the price reduction to the Government with the same effective date, and for the same time period, as extended to the commercial customer (or category of customers)

         

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48 C.F.R. § 552.238-75(a)-(c); see also Omnibus Compl. ¶ ¶ 48-52. Additionally, the Price Reduction Clause requires contractors to notify the Government of any price reduction " as soon as possible, but not later than 15 calendar days after its effective date," 48 C.F.R. § 552.238-75(f), and to modify the contract " to reflect any price reduction which becomes applicable," id. § 552.238-75(g). In accordance with the Price Reduction Clause, and by the terms of the Final Proposal Revision, Symantec and the GSA agreed that the Contract's " basis of award" would be Symantec's " commercial class of customers." See Omnibus Compl. ¶ ¶ 127-28.

         B. Performance of the Contract

         The Contract was in effect from January 2007 through September 2012. See id. ¶ 5. During the life of the Contract, Symantec made numerous claims for payment under the Contract or derivative agreements. See id. ¶ 134.

         Meanwhile, Symantec extended more favorable pricing to numerous similarly situated commercial customers. This better pricing resulted from non-published discounts, see id. ¶ 135, the Rewards buying program, see id. ¶ 144, exceptions and modifications to Express and Rewards buying program terms, see id. ¶ ¶ 146-57, and rebates, see id. ¶ ¶ 158-60. Based on the volume of purchases made, the Government would have qualified for the best pricing under the Rewards program within days of entering into the Contract. See id. ¶ ¶ 140-43. Symantec neither informed the GSA of the better pricing offered to its commercial customers nor adjusted the Government's pricing under the Contract to match discounts enjoyed by those commercial customers. See id. ¶ ¶ 133, 135, 145, 157, 160. Lastly, Symantec's discounting practices during the life of the Contract departed significantly from the Frequency Chart's representation. See id. ¶ ¶ 137-39.

         Rather than disclose any of these circumstances to the GSA, Symantec, in the course of requesting modifications to the Contract, repeatedly certified to the GSA that its previously disclosed commercial sales practices " ha[d] not changed." Id. ¶ ¶ 182-83. While making these certifications, Symantec's management knew that Symantec lacked systems for maintaining the relationship between the GSA's and commercial pricing, that Symantec's discounting programs were in a state of disarray, that commercial customers were in fact receiving better pricing than Symantec, and that sales representatives received no training on the Contract's requirements. See id. ¶ ¶ 161-80, 185. Symantec's false and inaccurate initial disclosures, violations of the Price Reduction Clause, and certifications that its initial disclosures remained unchanged caused the Government to overpay for Symantec products by millions of dollars on sales directly made by Symantec under the Contract. See id. ¶ ¶ 186-87.

         Additionally, Symantec authorized the GSA and certain independent resellers to use its CSPs and other disclosures in negotiating their own MAS contracts for the sale of Symantec products. See id. ¶ ¶ 189-96. The resellers subsequently made numerous inflated claims for payment under those MAS contracts. See id. ¶ ¶ 195-96. Accordingly, Symantec caused the Government to overpay by millions of dollars for Symantec products purchased from the resellers. See id. ¶ 197.

         C. State Contracts

         1. California

         To expedite state agencies' procurement, the California Department of General Services (" DGS" ) solicits, negotiates, and awards Leveraged Procurement Agreements (" LPAs" ). See id. ¶ 203. Two types of LPAs govern procurement of information technology products and services--(1)

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California Multiple Award Schedule (" CMAS" ) contracts and (2) Software License Program (" SLP" ) contracts. Id. ¶ 205. The pricing and terms of CMAS and SLP contracts are not usually negotiated or solicited competitively by California; instead, they are generally based upon previously awarded federal GSA MAS contracts, though agencies may attempt to negotiate better pricing and terms. Id. ¶ ¶ 207-08, 214-17.

         Beginning as early as March 2009, Symantec authorized certain independent resellers to respond to a CMAS solicitation by offering Symantec products covered by the GSA Contract. See id. ¶ 220. Similarly, in as early as December 2009, Symantec submitted an SLP Letter of Offer to DGS to supply Symantec products, through certain resellers, at discounts mirroring those enjoyed by the GSA under the GSA Contract. See id. ¶ 223. Specifically, the SLP Letter of Offer states that, subject to certain conditions, Symantec " will extend to the Authorized Resellers the discount levels identified in Exhibit B," which lists discounts ranging from 5% to 35%. SLP Letter of Offer, Def.'s Attach. D, ECF No. 46-4. The Letter also states that " [t]he State shall be responsible for independently negotiating the final purchase price and payment terms with its Authorized Resellers." Id. Ultimately, DGS awarded CMAS and SLP contracts to numerous resellers. See Omnibus Compl. ¶ ¶ 221, 224. Those resellers, in turn, sold Symantec products to various California agencies. See id. ¶ ¶ 226-37.

         2. Florida

         In April 2006, the Division of State Purchasing of Florida's Department of Management Services issued a purchasing memorandum authorizing state agencies to procure products and services under the GSA's " Schedule 70," which covers information technology software. See id. ¶ 241; Florida State Purchasing Mem. No. 2 (2005-06), Def.'s Attach. E, ECF No. 46-5. Subsequently, Florida made purchases of Symantec products, and at least into 2011, Symantec failed to disclose the fact that it offered larger discounts to commercial customers than it did for orders placed by Florida. See Omnibus Compl. ¶ ¶ 241-42, 322. Symantec also used or allowed to be used certain records or statements in connection with claims presented to Florida--including its initial disclosures to the GSA, applications to modify the Contract with the GSA, and certain " bills and GSA pricing information." Id. ¶ 325.

         3. New York

         In November 2000, Veritas Software, which Symantec acquired between 2005 and 2006, executed a contract with New York for the sale of software licenses and services (" New York Contract" ). See id. ¶ ¶ 54, 243. The New York Contract based its pricing on Veritas's, and later Symantec's, " U.S. commercial price lists," and extended to New York a 22.5% discount on software and a 5.5% discount on related services. See id. ¶ 243. The New York Contract also contained a price reduction clause that required Veritas, and later Symantec, to match price reductions extended to " its customers generally or to similarly situated government customers" and special offers or promotions " generally offer[ed] . . . to other customers . . . for a similar quantity." Id. In 2006, Veritas assigned the New York Contract to Symantec, which certified that it would maintain the pricing terms. See id. ¶ 244. During the life of the New York Contract, which expired in November 2010, Veritas and Symantec offered to similarly situated commercial customers more favorable pricing than that enjoyed by New York. See id. ¶ ¶ 245-47.

         D. Procedural History

         Lori Morsell has been a Symantec employee since March 2011. See id. ¶ 24.

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After joining the company, she managed the GSA Contract and relations with business partners that sold Symantec products under their own MAS contracts. Id. In this capacity, she became aware of the above-described conduct and attempted unsuccessfully to change Symantec's practices. See id. ¶ ¶ 172, 174-75.

         In May 2012, Morsell, as Relator on behalf of the United States, filed her initial complaint against Symantec. See generally Compl., ECF No. 1. Subsequently, the United States and the States of California and Florida elected to intervene. See ECF Nos. 21, 28, 29. Although the State of New York declined to intervene, see ECF No. 27, Relator elected to proceed on its behalf, see ECF No. 40; see also 13 N.Y.C.R.R. § 400.4(c)(1). In October 2014, the United States, California, Florida, and Relator on behalf of New York filed their joint Omnibus Complaint, which superseded all previous complaints. See Omnibus Compl. 1.

         In the Omnibus Complaint, the United States brings several claims against Symantec under the federal False Claims Act, 31 U.S.C. § § 3729 et seq. (" FCA" ). Count I alleges that Symantec knowingly presented false claims, in violation of § 3729(a)(1)(A). See Omnibus Compl. ¶ ¶ 248-55. Count II alleges that Symantec knowingly made false statements material to its false claims, in violation of § 3729(a)(1)(B). See id. ¶ ¶ 256-62. In Count III, the United States contends that Symantec caused certain independent resellers to present false claims, in violation of § 3729(a)(1)(A). See id. ¶ ¶ 263-71. Count IV alleges that Symantec caused independent resellers to make false statements material to false claims, in violation of § 3729(a)(1)(B). See id. ¶ ¶ 272-79. Lastly, Count V alleges that Symantec concealed its obligations to the United States, in violation of § 3729(a)(1)(G). See id. ¶ ¶ 280-85. Additionally, the United States asserts against Symantec a series of common-law claims--negligent misrepresentation, id. ¶ ¶ 286-91 (Count VI), breach of contract, id. ¶ ¶ 292-97 (Count VII), unjust enrichment, id. ¶ ¶ 298-300 (Count VIII), and payment by mistake, id. ¶ ¶ 301-03 (Count IX).

         California, Florida, and Relator on behalf of New York each allege that Symantec violated their respective state false claims statutes. See id. ¶ ¶ 304-39 (Counts X--XVI). By way of relief, the United States, California, Florida, and New York (through Relator) each seek damages, treble damages, and civil penalties under the statutes applicable to their claims. See id. at 77-78. Relator seeks a share of the recoveries of the United States and the States under the respective federal and state statutes. See id. at 78.

         Symantec subsequently moved to dismiss the Omnibus Complaint in its entirety. See Mot. Dismiss, ECF No. 46. The United States then moved for partial summary judgment on certain elements of its FCA and contractual claims. See U.S. Mot. Partial Summ. J., ECF No. 54.[7] Both motions are now fully briefed.

         III. LEGAL STANDARDS

         A. Rule 12(b)(6)

         The Federal Rules of Civil Procedure require that a complaint contain " a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of

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success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000).

         Nevertheless, " [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations " must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.

         B. Rule 9(b)

         Plaintiffs bringing claims under the FCA must satisfy the additional pleading requirements of Rule 9(b). See United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52, 351 U.S. App.D.C. 30 (D.C. Cir. 2002). Rule 9(b) provides that " [i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). However, " [m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Id. Reading Rule 9(b) together with Rule 8's requirement that allegations be " short and plain," Fed.R.Civ.P. 8(a)(2), the D.C. Circuit has required plaintiffs to " state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud," and to " identify individuals allegedly involved in the fraud," United States ex rel. Williams v. Martin-Baker Aircraft Co., Ltd., 389 F.3d 1251, 1256, 363 U.S. App.D.C. 419 (D.C. Cir. 2004) (citation omitted).

         C. Rule 56

         A court may grant summary judgment when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party moving for summary judgment bears the " initial responsibility" of demonstrating " the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed.R.Civ.P. 56(c). In determining whether a genuine issue exists, a court must refrain from making credibility determinations or weighing the evidence; rather, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         IV. SYMANTEC'S MOTION TO DISMISS

         In its motion to dismiss, Symantec proffers a range of reasons why the Omnibus Complaint's allegations are deficient. As to all of the Government's FCA claims, the Court denies the motion to dismiss. See infra Part IV.A. Because California, Florida, and Relator on behalf of New York have failed to state claims under their respective state statutes, the Court dismisses

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their claims but grants them leave to amend their allegations. See infra Part IV.B. Lastly, the Court denies the motion to dismiss as to the Government's negligent misrepresentation, breach of contract, unjust enrichment, and payment by mistake claims. See infra Part IV.C, IV.D.

         A. United ...


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