United States District Court, D. Columbia.
UNITED STATES ex rel. LORI MORSELL, Plaintiff,
SYMANTEC CORPORATION, Defendant
[Copyrighted Material Omitted]
LORI MORSELL, United States ex rel., Plaintiff: Christopher
Bowmar Mead, Lance Alan Robinson, Mark London, LONDON & MEAD,
SYMANTEC CORPORATION, Defendant: Anne B. Perry, David Lloyd
Douglass, Jonathan S. Aronie, LEAD ATTORNEYS, SHEPPARD,
MULLIN, RICHTER & HAMPTON LLP, Washington, DC.
STATE OF NEW YORK, Movant: Daniel Smirlock, LEAD ATTORNEY,
OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, NY.
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.
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.
STATE OF FLORIDA, Intervenor: Russell S. Kent, LEAD ATTORNEY,
OFFICE OF THE FLORIDA ATTORNEY GENERAL, Tallahassee, FL.
Document Nos.: 46, 54
CONTRERAS, United States District Judge.
in Part and Denying in Part Defendant's Motion
to Dismiss; Denying the United States'
Motion for Partial Summary Judgment
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
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
Negotiation of the Contract
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.
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
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
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. In response to this
question, Symantec checked the box for " NO."
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.
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. ¶
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.
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. In 2005, however, over 9,000
commercial orders receiving non-published discounts were not
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.
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. 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.
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. 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.
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.
January 25, 2007, Symantec sent Dixon its Final Proposal
Revision for the Contract. See id. ¶
93. 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.
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
(c) (1) A price reduction shall apply to purchases under this
contract if, after the date negotiations conclude, the
(i) Revises the commercial catalog, pricelist, schedule or
other document upon which contract award was predicated to
(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
(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
(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)
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.
Performance of the Contract
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. ¶
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. ¶ ¶
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.
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.
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
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.
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.
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.
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.
Morsell has been a Symantec employee since March 2011.
See id. ¶ 24.
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.
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.
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).
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.
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. Both motions are now
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
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).
" [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.
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).
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).
SYMANTEC'S MOTION TO DISMISS
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
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.