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United States v. Capitol Supply, Inc.

United States District Court, District of Columbia

April 19, 2017

UNITED STATES OF AMERICA, ex. rel. Louis Scutellaro, Plaintiff,


          BERYL A. HOWELL Chief Judge

         The relator, Louis Scutellaro, brings this lawsuit against the defendant, Capitol Supply, Inc., pursuant to the qui tarn provision of the False Claims Act("FCA"), 31 U.S.C. § 3730(b)(1), alleging that the defendant falsely certified that the products it sold to federal agencies were manufactured in compliance with the Trade Agreements Act("TAA"), 19 U.S.C. §§ 2501 et 5eg., and Buy American Act ("BAA"), 41 U.S.C. §§ 8301 et seq., which together require that products sold to the government come only from designated countries.[1] Rel's First Am. Compl. ("Rel's FAC")¶¶ 10-20, ECF No. 27. The relator contends that thousands of the products sold by the defendant to the U.S. government came from non-designated countries. The United States intervened with respect to Fellowes brand document shredders, pursuant to 31 U.S.C. § 3730(b)(4)(A). See generally U.S. First Am. Compl. in Partial Intervention ("U.S. FAC"), ECF No. 31.

         Thus far, this litigation has spanned seven years. The relator filed his initial complaint in June 2010, see generally RqVs Compl., ECF No. 1, and the government subsequently served the defendant with two subpoenas duces tecum, m 2010 and 2011, to obtain country of origin ("COO") information for products sold by the defendant to federal agencies. U.S. Pet. Summ. Enf. OIG Subpoena ("U.S. Pet."), Ex. 1, Decl. of Crystal Johnson, Special Agent, OIG ("Johnson Decl.")¶¶ 10, 12, Misc. No. 13-373 (BAH), ECF No. 1-1. The defendant, however, failed to comply fully with the subpoenas, leading this Court to grant the government's Petition for Summary Enforcement of the subpoenas. See generally Order Granting U.S. Pet., No. 13-mc-373-BAH, ECF No. 17; see also generally United States v. Capitol Supply, Inc. ("Capitol Supply"), 27 F.Supp.3d 91 (D.D.C. 2014). When the defendant's failure to comply with the subpoenas persisted, the government moved for sanctions, and this Court entered a Conditional Order of Contempt against the defendant on August 6, 2014. See generally Order Granting in Part and Denying in Part U.S. Mot. Sanctions ("Civil Contempt Order"), No. 13-mc-373-BAH, ECF No. 27. Ultimately, the defendant filed a certification conceding that it had retained no COO information responsive to the subpoenas prior to July 2009 and only incomplete information thereafter. Def.'s Supp. Cert, at 1, Feb. 27, 2015, ECF No. 72-1. Discovery was then temporarily stayed for mediation, see Minute Order (dated Aug. 3, 2015), which proved unsuccessful.

         The stay having been lifted, see Minute Order (dated Feb. 8, 2016), the parties have now filed a total of five motions. First, the relator and the government have each filed a motion for an adverse inference. See generally Relator's Mot. Adverse Inference ("Rel's Mot. Adv. Inf."), ECF No. 93; U.S. Mot. Adverse Inference ("U.S. Mot. Adv. Inf."), ECF No. 95. Second, the defendant has filed a motion for summary judgment predicated on the public disclosure bar. See Def.'s Supp. Mot. Summ. J. ("Def.'s MS J"), ECF No. 92. The relator and the government also have each moved for summary judgment. U.S. Mot. Summ. J. ("U.S. MS J"), ECF No. 94; Rel's Mot. Summ. J. ("Rel's MS J"), ECF No. 96. For the reasons set forth below, the motions for adverse inference are granted, and all three motions for summary judgment are denied.

         I. BACKGROUND

         Given the longevity of this litigation, the procedural history is described after setting out the facts pertinent to the pending motions, which facts have also been summarized in a prior opinion. See Capitol Supply, 27 F.Supp.3d 91, 93-94 (D.D.C. 2014).

         A. Factual History

         1.The Defendant's Business with the Federal Government

         The defendant offers for sale to the federal government nearly one million products from thousands of manufacturers under various Federal Supply Schedule contracts with the General Services Administration ("GSA") through the GSA Advantage! website. Def.'s Opp'n U.S. Pet., Ex. 1, Decl. of Robert Steinman Supp. Opp'n U.S. Pet. ("Steinman Decl.")¶¶ 2-3, Misc. No. 13-373 (BAH), ECF No. 8-1.[2] The defendant obtained its first contract with GSA in 1985 and, by 1996, the federal government was its primary source of business. Rel's SMF ¶¶ 8-9. As of April 2016, the defendant held eight federal contracts, six of which are GSA contracts. See Def.'s Omnibus Stmt. Genuine Issues of Material Fact ("Def.'s SMF") ¶ 9, ECF No. 114. During the pendency of this litigation, the government has renewed seven of the defendant's contracts, and awarded the defendant two new contracts. Id. ¶ 11.

         The defendant entered into one of these contracts with GSA, Multiple Award Schedule Contract No. GS-02F-0100N, U.S. MSJ, Ex.lA, MAS Contract 0100N, ECF No. 94-3, on January 6, 2003. The contract, which permits the defendant to advertise and sell certain office supplies to various federal agencies through the GSA Advantage! website, is governed by specific regulations and provisions of the Federal Acquisition Regulation ("FAR"). These regulations require, inter alia, that all vendors selling products to federal agencies retain records regarding the COO of each of their products. MAS Contract 0100N at 64 (incorporating 48 C.F.R. § 52.225-5); Def.'s Am. Answer¶ 10, ECF No. 54-1; Johnson Decl. ¶ 8a. Under the FAR applicable to MAS Contract 0100N, the defendant certifies that each "end product" sold is TAA compliant. See MAS Contract 0100N at 84-86; Def.'s SMF ¶ 6; see also 48 C.F.R. § 52.225-6(a) ("The offeror certifies that each end product, except those listed in paragraph (b) of this provision, is a U.S.-made or designated country end product, as defined in the clause of this solicitation entitled 'Trade Agreements.'"); 48 C.F.R. § 52.225-5(b) ("The Contractor shall deliver under this contract only U.S.-made or designated country end products except to the extent that, in its offer, it specified delivery of other end products in the provision entitled 'Trade Agreements Certificate.'"). In its invoices, however, the defendant does not expressly certify the COO for its products, or, for that matter, compliance with the TAA. Def.'s SMF ¶¶ 19-20.

         Under MAS Contract 0100N, the defendant sold a variety of office supplies, including document shredders manufactured by Fellowes, Inc. ("Fellowes"), to a number of federal agencies through the GSA Advantage! website. U.S. FAC ¶¶ 8; Def.'s Am. Answer ¶ 8. The defendant obtained the goods from several suppliers, none of which expressly certified that the Fellowes document shredders were TAA compliant. See, e.g., U.S. MSJ, Ex. 6, United Stationers' Letter of Supply, ECF No. 94-9; id., Ex. 8, Tech Data Terms & Conditions of Sale, ECF No. 94-11; id., Ex. 7, Ingram Micro Letter of Supply and accompanying Fellowes Letter of Supply ("Ingram Micro Letter of Supply"), ECF No. 94-10.[3]

         2.The Defendant's Tracking of COO Data

         According to the defendant, its "computer system and management of COO information has significantly evolved over time." Def.'s SMF ¶ 21. When the defendant entered the office-products business in 2003, its only supplier was United Stationers. Id. ¶ 23. The original price list was compiled in a spreadsheet and a "rudimentary database in Microsoft Access was developed." Id. ¶ 24. United Stationers provided the defendant with COO data "approximately four times per year, " and, accordingly, the defendant manually updated its COO information on a quarterly basis in the Microsoft Access database. Id. ¶¶25, 29.

         Sometime in 2005 or 2006, over the course of more than one year, the defendant migrated its COO files from Microsoft Access to a more automated system housed on an "SQL Server." Id. ¶ 30. In order to track the COO of products offered for sale, suppliers transmitted the COO "data feeds" to the SQL server directly. Rel's MSJ, Ex. 4, Dep. of Stuart Fox ("Fox Dep.") at 38-40, ECF No. 96-8.[4] The vendors had different "update schedules, " and some information was updated "daily, some weekly, some monthly, some quarterly, and some only when [the vendor] sent [the defendant] new pricing." Def.'s SMF ¶ 31. According to the defendant, if a product was TAA non-compliant, the system was designed to prevent that product from being either advertised or sold through the GSA Advantage! website. Fox Dep. at 141:14- 142:5; see also Def.'s SMF¶ 33 ("When non-compliant COO information was detected (whether from a manufacture [sic], vendor, or the GSA itself), Capitol would seek a contract modification to have the product removed from the schedule and the GSA website."). The defendant later asserts, however, that under this system, "even though a product with non-compliant COO information may be listed for sale on the GSA website, if/when the product is ordered through the GSA website, Capitol's internal system will not process the sale because such products are identified as unavailable." Def.'s SMF¶ 37. Given the differing descriptions of the defendant's handling of non-compliant products, the record is unclear whether the company's system actually prevents non-compliant products from being listed for sale on the GSA Advantage! website or from being sold.

         Before June or July 2009, the historical COO data for the products offered for sale by the defendant under its GSA contracts was not retained in the system. Def.'s Supp. Cert, at 1; see also Steinman Decl. ¶ 6. Instead, it was overwritten as new data came in from each of the defendant's suppliers. Def.'s Supp. Cert, at 1; see also Steinman Decl. ¶ 6; Fox Dep. at 51-55. From July 2009 to November 2010, the defendant transitioned to anew system whereby COO information was "tracked by vendor and a history of what a vendor indicated was the COO was preserved on each update." Def.'s SMF ¶ 35. Although the defendant explains that this transition was prompted because it learned that suppliers often had "conflicting COO information, " id. ¶ 34, the defendant's IT contractor, Stuart Fox, testified that the defendant began retaining COO information in response to the September 2010 subpoena "just to be safe, " Fox Dep. at 53:13-55:20.[5] Thereafter, in December 2010, the defendant created a "country of origin history table" that preserved COO information from the "data feeds" received from its suppliers. Id. at 69:17-72:16; see also Steinman Decl. ¶6. The defendant does not explain why it waited until 2009 to retain COO data when GSA began notifying the defendant about issues with the company listing non-compliant products on the GSA Advantage! website as early as 2005. See infra Part I.A.4.

         3. GSA Contractor Assistance Visits

         Pursuant to the defendant's contracts, Industrial Operations Analysts ("10As") from the GSA conduct regularly scheduled "Contractor Assistance Visits" ("CAVs"). Def.'s SMF ¶ 42. According to the GSA, "a CAV serves several purposes: to clarify the terms and conditions of the subject contract; to assist with contractor questions and concerns; to identify potential problems; to gather contractor performance data; and to verify processes including the contractor's sales tracking system, trade agreements, and other key contract requirements." Id. ¶ 44 (citing id., Ex.3, GSA's New Contractor Orientation PowerPoint dated August 2012 ("GSA PowerPoint") at 11, ECF No. 114-3). Following a CAV, a "Report Card" is issued to the contractor based on observations made during the visit. See GSA PowerPoint at 13. The GSA explains that a Report Card is a "'snap-shot' in time of [the contractor's] Multiple Award Schedule contract after a [CAV]" and "deals directly with performance against some of the main MAS Terms and Conditions." Id. at 14.

         Tom Brady, the GSA Director of the Supply Management Division, testified that "[i]n part, the CAV visit evaluates record retention practices." Dep. of Tom Brady ("Brady Dep.") at 72:12-14, ECF No. 102. Mr. Brady stated that "maintenance of COO information [is] a key contract requirement." Id. at 73:20-22. IOAs who conducted CAVs of the defendant were advised that the defendant did not retain historical COO information for every product, at least until approximately 2009 or 2010. Def.'s SMF ¶ 57. For every Report Card in the record, ranging in date from 2007 through 2014, one IOA, Wendy Springer, who worked in the Atlanta Regional Office, was the "assigned IOA." See generally Def.'s Opp'n U.S. & Rel's MSJs, Composite Ex. 2, GSA Report Cards, ECF No. 113-2; see also Dep. of Wendy Springer, Vol. I ("Springer Dep. I") at 6:12, ECF No. 103.[6] Ms. Springer, who never gave the defendant a critical mark for its COO tracking, testified that she "didn't see anything wrong with then-process or their understanding of the Trade Agreements Act." Springer Dep. I at 67:2-6. Ms. Springer also testified that she could not recall having informed the defendant "that it would be violating any law by failing to retain contemporaneous COO records." Id. at 106:1-12. Further, in one of her CAV reports, dated September 26, 2007, Ms. Springer stated that the defendant "demonstrate[d] compliance with the Trade Agreements Act" and "maintains a database of all products with a listing of country of origin to ensure all products offered are TAA compliant." Def.'s SMF, Ex. 4, CAV Report dated Sept. 26, 2007 at 1-2, ECF No. 114-4. The IOAs' review of documentation and processes was, however, limited. Ms. Springer explained that the defendant controlled the scope of the CAVs by selecting three small samples of data, such as "a letter of supply or just any document that shows that they have some sort of documents that are source documents, " that Ms. Springer would review. Springer Dep. I at 58:8-60:2.

         4. GSA Notice s of TAA Violations

         While the IOAs in the Regional Office were issuing the defendant favorable reviews, back at the GSA's New York City offices, Michelle Williams, the GSA Trade Agreements Act and GSA Advantage! Coordinator, was regularly notifying the defendant via email that certain TAA non-compliant products were being offered for sale by the defendant on the GSA Advantage! website. See, e.g., U.S. MSJ, Ex. 4A at 1, ECF No. 94-7. On September 21, 2005, for example, Ms. Williams informed the defendant that over 400 Chinese-made goods were being offered for sale by the defendant on the website, in breach of the TAA and MAS Contract 0100N. Id., Ex. 4A at 1-10. China is not included on the list of designated countries under the TAA. See 48 C.F.R. § 25.003 (listing designated countries). Among the 400 products were 45 office products manufactured by Fellowes, including document shredders. See U.S. MSJ, Ex. 4A at 1-10. Mr. Steinman acknowledged the email and pledged to remove the defendant's TAA non-compliant products from the GSA Advantage! website within two weeks. See generally Rel's MSJ, Ex. 16, ECF No. 96-20.

         Later the same month, however, on September 29, 2005, Ms. Williams again notified the defendant that the U.S. Army had complained that hundreds of Chinese-made products were offered for sale by the defendant on the GSA Advantage! website, as well as a Department of Defense website. See U.S. MSJ, Ex. 4B, ECF No. 94-7. Among these products were twenty-one office products made by Fellowes, including document shredders. See Id. at 1-6. Ms. Williams sent at least fifteen additional notices of possible TAA violations between 2006 and 2012 on the following dates: April 21, 2006; August 22, 2006; November 5, 2007; March 16, 2009; April 13, 2009; July 2, 2009; August 24, 2009; October 15, 2009; August 3, 2010; November 15, 2010; April 11, 2011; April 19, 2011; January 9, 2012; June 8, 2012; and February 13, 2012. Id., Exs. 4C-4Q, ECF No. 94-7.

         In an April 2006 notice, Ms. Williams informed the defendant that it needed to "conduct a self-assessment of the current processes, procedures and/or systems ... in place to monitor the country of origin for all products offered under [its] Schedule contract." Id., Ex. 4C; see also id., Ex. 4D-4Q. Further, Ms. Williams stressed that "compliance with the Trade Agreements Act is a serious issue" and warned the defendant that the Department of Justice "has been proactive in conducting investigations, and a number of settlements have already been reached under the qui tam provision of the False Claims Act." Id., Ex. 4C at 1-2.

         Despite over a dozen notices during a six year period, the defendant continued to offer TAA non-compliant products for sale on the GSA Advantage! website. Consequently, on September 14, 2011, the defendant received a "Cure Notification Letter" from Edward Lew, a Senior Contracting Officer with GSA Federal Acquisition Services, due to the defendant's "continued contract violations, " citing in particular "non-TAA items listed on [the defendant's] schedule." Id., Ex. 5, Cure Notification Letter ¶ 4, ECF No. 94-8. The letter informed the defendant that until the violations were rectified, it would not be permitted to offer any products for sale on the GSA Advantage! website. On September 22, 2011, however, Mr. Lew informed the defendant that the GSA had determined that the defendant's cure plan "met the necessary requirements set forth in the cure letter." Id., Ex. 10 at 2, ECF No. 94-13. The record is unclear what the defendant included in the "cure plan" to show that "necessary requirements" were met. Mr. Lew expected that the GSA Advantage! website and the DOD website would "be fully operational" for the defendant "some time [the next day]." Id. The defendant, however, was apparently dissatisfied with this result, as it responded to Mr. Lew's notification by declaring that "GSA should make best efforts to restore [the defendant] to all purchasing channels" that same day "to mitigate the harm the GSA ha[d] arbitrarily, capriciously and needlessly imposed on Capitol Supply." Id. at 1. Moreover, one of the defendant's attorneys notified Mr. Lew that she was sharing Mr. Lew's notification with the defendant's lobbying firm, which would "in turn, share [Mr. Lew's] response with Members of Congress including those who have appropriations authority over" the GSA. Id. Later that day, the defendant's lobbyist wrote to Mr. Lew that "Congressional oversight [was] now reviewing [GSA's] progress and contracting methodology." Id., Ex. 11 at 1, ECF No. 94-14.

         5. The Relator's and the Government's Damages Analyses

         The damages calculations performed by the relator's and the government's experts are not the most accessible, in part because the plaintiffs had to cull sales and COO data from disparate sources given the defendant's deficient recordkeeping procedures for many years. The relator retained Dr. Dwight Steward, an economist and statistician, to calculate damages based on sales and COO data. See Rel's SMF ¶ 114. In performing his calculations, Dr. Steward relied upon sales and COO data supplied by the GSA, the defendant, and the defendant's suppliers.[7] Id. ¶¶117, 130, 139, 150.

         Dr. Steward's damages calculation proceeded in four stages. See Decl of Dr. Steward, PhD ("Steward Decl.") ¶ 3, ECF No. 96-52 ("I was asked to break down the analysis into four stages based on the information used in each stage."). In the first stage, Dr. Steward relied on sales and COO data provided by suppliers as well as sales data provided by the defendant. Id. ¶ 4. In stages two and three, Dr. Steward relied upon GSA sales data and COO data provided by the defendant. Id. ¶¶ 13, 20. Stage four utilized GSA sales data supplied by the defendant and COO data provided by the defendant's vendors. Id. ¶29. Dr. Steward performed an "overlap analysis" to ensure that "sales of products were not double-counted by being included in multiple stages of the calculations." Id. ¶ 38. "The total number and value of the TAA non-compliant sales for all four stages were calculated by adding the totals for all four stages and subtracting the overlaps." Id. ¶40.

         Dr. Steward's report contains "four possible single damages amounts" depending on how the calculations were performed, id. ¶ 41:

1. 21, 860 TAA non-compliant sales worth $4, 223, 734.00
2. 24, 245 TAA non-compliant sales worth $4, 788, 156.06
3. 22, 471 TAA non-compliant sales worth $4, 271, 335.00
4. 24, 808 TAA non-compliant sales worth $4, 834, 716.06

         Dr. Steward suggests that his stage one damages calculation is probably "most accurate" because the underlying data was obtained via subpoenas to the defendant's suppliers, and the subpoenas "limit themselves to GSA sales, " and because the defendant's own sales files "regularly did not include original manufacturer identification numbers needed to match [the defendant's] sales files to vendor supplied COO files." Id. ¶ 5.

         For its part, the government retained Richard P. Kozlow, an accountant, auditor, risk management professional, and consultant on financial and operational control. U.S. MSJ, Ex. 12, Richard P. Kozlow Expert Report ("Kozlow Rep.")¶ 1, ECF No. 94-15. Mr. Kozlow relied on sales data provided by the defendant and COO information provided by the defendant, Fellowes, and the defendant's suppliers (United Stationers and Ingram Micro). Id.¶4. In performing his calculations, Mr. Kozlow "followed the relevant elements of the International Standards for the Professional Practice of Internal Auditing and Generally Accepted Audit Standards. Id. Mr. Kozlow opines that, from December 24, 2003, through December 5, 2011, the defendant sold to the government 827 Fellowes shredders worth $579, 919.65. Id. ¶ 7. Of these sales, Mr. Kozlow concluded that 588 (or 71.1%) of those shredders, worth $183, 709.92 (or 31.7%) were manufactured in China. Id. Mr. Kozlow reported that he was unable to determine the COO of 65 Fellowes shredder sales, totaling $62, 824.51, because "Capitol Supply failed to include accurate information on model numbers that could be related back to Fellowes, Inc. product listings." Id. ¶ 9.

         Mr. Kozlow revised his initial report because he had originally duplicated 81 items. Dep. of Richard P. Kozlow at 52:4-16, ECF No. 110. Further, Mr. Kozlow explained that his analysis for identifying COO information "was not an exact science" because "[t]he vendor line items file had a variety of different descriptions for the same product. ... It was also not consistent in listing model numbers. Sometimes model numbers were included in the description line; sometimes they were not. Sometimes model numbers showed in the model number column; very often they did not." Id. at 66:8-67:1.

         Since the government seeks treble damages, the government concludes that the gross total for damages under the FCA, for just the Fellowes document shredders, is $551, 129.76. U.S. MSJ at 14. The government assumes "that the value of the Chinese-made shredders was the price paid by the United States in each transaction" and, thus, $183, 709.92 maybe subtracted from the trebled damages, resulting in a total damages award of $367, 419.84. Id. The government also asks for an award of "civil penalties in the amount of $10, 000 for each false claim or certification, totaling $5.88 million." Id.

         The defendant takes issue with Dr. Steward's and Mr. Kozlow's damages analyses. See Def.'s SMF ¶¶ 110, 113-57; Def.'s Opp'n U.S. & Rel's MSJs at 13-24.

         B. Procedural History

         1. Relator's Complaint

         The relator's original complaint, filed on behalf of the United States against the defendant, pursuant to the qui tarn provisions of the FCA, 31 U.S.C. § 3730(b), alleges that the defendant was "selling products to the United States Government that did not originate in designated countries under the Trade Agreements Act, and therefore .. . present[ed] false claims to the United States Government for payment, " Rel's Compl. ¶5, ECF No. 1. Specifically, the complaint alleges that the defendant "falsely claimed that Fellowes Manufacturing Company's paper shredders, " which were offered for sale through Capitol's Federal Supply Schedule contracts, "were made in the United States, whereas, in truth and in fact, they were manufactured in China." Id. ¶ 16. The complaint also alleges that the defendant "falsely market[s] numerous other products ... as being manufactured in the United States when they are not, including, but not limited to: light bulbs (incandescent, fluorescent, halogen, sodium, etc.), light fixtures (indoor and outdoor), thermostats, televisions, computer monitors, computer back up power supplies, electric heaters, exhaust fans, batteries, ballasts for fluorescent fixtures, vacuum cleaners, clocks and timers. Most, if not all, of the products are made in China or Mexico." Id. ¶20.

         2. The Government's Investigation and Intervention

         After receiving the relator's qui tam complaint, the GSA's Office of Inspector General ("OIG") initiated an investigation into the alleged FCA violations. See Johnson Decl. ¶ 9. On November 4, 2010, OIG "served the first of two subpoenas duces tecum upon Capitol Supply requesting all product, sales and country of origin information for Fellowes brand shredders sold pursuant to all GSA schedule contracts from January 2004 through the date of the subpoena." See U.S. Pet. ¶ 5(a), Misc. No. 13-373 (BAH), ECF No. I.[8] A second subpoena was issued in June 2011 "requesting all information on Multiple Award Schedule Contract No. GS-02F-0100N, including all sales and country of origin information for all products sold during the period of January 1, 2004 through the date of the subpoena." Id. ¶5(b). The government intervened only with respect to Fellowes document shredders, allegedly made in China. U.S. FAC ¶¶ 11-12.

         Meanwhile, unsatisfied with the defendant's document production in response to the two subpoenas, the government filed a Petition for Summary Enforcement of Inspector General Subpoena on April 16, 2013, which was granted and the defendant directed to comply with the subpoenas. See generally Order Granting U.S. Pet, Misc. No. 13-373 (BAH), ECF No. 17; see also generally Capitol Supply, 27'F'. Supp. 3d 91 (rejecting the defendant's argument that further compliance with the subpoenas would be unreasonable because (1) the defendant had already produced voluminous documents and further production would be an undue burden; (2) the defendant had produced documents in the format in which the documents are received and had no obligation to convert records into any other format requested by the OIG; and (3) the defendant had no obligation to produce records already in the government's possession). Notwithstanding the Court's pellucid instruction, the defendant continued to drag its feet in producing the information sought in the subpoenas, prompting the government to move for sanctions in July 2014. See generally Pet's Mot. Sanctions, Misc. No. 13-373 (BAH), ECF No. 20. After another hearing, the Court entered a Conditional Order of Contempt against the defendant on August 6, 2014, giving the defendant until September 2, 2014, to comply with the Court's previous Order. See Civil Contempt Order.

         The defendant filed a Notice of Compliance with Court Orders on September 2, 2014, certifying that it had "produced to the Plaintiffs via e-mail credentials to a FTP site containing the documents being produced." Def.'s Notice of Compliance with Court Order at 1, Misc. No. 13-373 (BAH), ECF No. 28. Six months later, the defendant filed a Supplemental Certification in the instant case, which finally disclosed that "Capitol does not have any information on the Country of Origin for any sale prior to June 2009. From July 2009 through November 2010, Capitol's information in its computer database on the Country of Origin for sales are incomplete. From December 2010 through the present day, Capitol's computer database has the majority of information it received from manufacturer or vendor Country of Origin data feeds." Def.'s Supp. Cert. atl. Furthermore, the Supplemental Certification indicated that "Capitol does not have any e-mail correspondence prior to the approximate date of July, 2011." Id.

         3.The Defendant's Motion to Dismiss

         Following the government's intervention, the defendant filed motions to dismiss the relator's First Amended Complaint and the government's Complaint in Partial Intervention. See Def.'s Mot. Dismiss Rel's FAC, ECF No. 35; Def.'s Mot. Dismiss U.S. FAC, ECF No. 36. On March 18, 2014, this Court held amotions hearing and granted the defendant's motion "with respect to [the relator's] claims that are identical to those raised in the" government's First Amended Complaint, but denied the motion in all other respects. Minute Entry (dated March 18, 2014). Further, the Court dismissed the common law claims raised in the government's First Amended Complaint under Counts III and IV, leaving only the FCA claims under Counts I and II. Id.; see also U.S. FAC ¶¶ 15-26.

         4.The Parties' ...

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