Friday, May 20, 2011
We love celebrity contract riders here at ContractsProf blog. Excerpts of Katy Perry's 45-page rider are available at thesmokinggun.com. (If you don't know who Katy Perry is, you are reading too much of this blog and instead you could have learned that California Girls are scantily glad, wear stilettos on the beach and are, therefore, unforgettable.)
Highlights of the rider include a ban on carnations, a 23-point "principle driver policy" for chauffeurs, and the requirement of a spacious dressing room "piped or draped in cream or soft pink."
[Meredith R. Miller]
Wednesday, May 18, 2011
Adam Candeub, Contract, Warranty and the Patient Protection and Affordable Care Act, 46 Wake Forest L. Rev. 45 (2011)
Tim Stretton, Contract, Debt Litigation and Shakespeare's The Merchant of Venice, 31 Adelaide Law Review (2010) (Australia)
Tuesday, May 17, 2011
Monday, May 16, 2011
We blogged about this case one year ago when the Second Circuit ruled in favor of Mr. Kirk. Here's how we described the case back then:
Daniel Kirk, a Vietnam War veteran, worked at Millar Elevator Industries beginning in the late 70s. In 2002, Millar's operations were integrated into those of the Schindler Elevator Company. In 2003, Millar was demoted and resigned. Eight months later, Kirk sued, alleging that he had been fired in violation of VEVRAA, the VIetnam Era Veterans Readjustment Assistance Act. That claim was dismissed and the dismissal was affirmed last year.
Meanwhile, Kirk brought suit under the False Claim Act in the name of the U.S. government. In 2007, the government elected not to intervene and Kirk pursued his claim as a relator. His suit alleged that Schindler had entered into hundreds of contracts subject to VEVRAA requirements but that Schindler had failed to comply with those requirements. Among other claims, Kirk alleged that Schindler failed to submit required VETS-100 reports in some years and had filed false VETS-100 forms in others. The district court dismissed the action finding, among other things, that the claim was bared under the FCA, 31 U.S.C. s. 3730(e)(4), which provides that information that has been publicly disclosed cannot be a basis for a FCA claim. The information at issue here related to the allegedly missing and/or falsified VETS-100 forms that Mr. Kirk had discovered through FOIA requests.
The relevant section of the FCA provides:
No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
The Second Circuit vacated and remanded. There was no question that Mr. Kirk was not the original source of the information, so the only question whether a FOIA request counts as "public disclosure" for the purposes of the statute. The Third Circuit answered that question in the affirmative. The Ninth Circuit concluded that only a FOIA request that results in the production of an "enumerated source;" that is, one of the types of sources expressly named in the statute, creates a jurisdictional bar to an FCA claim. The Second CIrcuit followed the Ninth. It was supported in its position by the U.S. government as amicus curiae.
At that time, we suggested that the rules regulating when the False Claim Act's jurisdictional bar precludes qui tam actions are complicated. Mr. Kirk, the relator in the case, commented that, in his view, they are not complicated at all and the Second Circuit was obviously correct in its finding that the jurisdictional bar did not preclude his claim.
The Supreme Court split along party lines 5-3 (Justice Kagan did not participate) and reversed, with Justice Thomas writing for the majority. The majority held that a government agency's response to a FOIA request constitutes a "report" and thus falls within the FCA's jurisdictional bar. Justice Ginsburg wrote a short dissent, basically endorsing the Second Circuit's approach. The opinion can be found here.
SCOTUSblog provides coverage here.
Early in my practice career, I did a fair amount of white collar criminal work, usually involving contracts with the U.S. government. Later I spent a good deal of time doing internal investigations on behalf of clients who had stumbled over some in-house wrongdoing, to help determine what steps ought to be taken. I had the good luck to be mentored by (and later be a partner of) one of the most ethically upright and honest lawyers I've ever known. And I've always remembered his advice. "At the end of the day," he said, "if somebody is going to have to go to jail, make sure it's your client . . . not you." He was firmly of the opinion that the Allenwood Federal Correctional Complex (aka "Club Fed") was despite the name a much better place to visit than to live.
Now Mike Ross (left), another one of my former colleagues at my old firm -- who went on to a very successful career as an in-house counsel and then a lecturer at UVA and Berkeley -- has taken up the thread with a new book, Ethics and Integrity in Law and Business, out soon from Lexis/Nexis. It's a Professional Responsibility book that seems to be specially aimed at the perils transactioinal and other business lawyers face. I don't have a link yet, but I'm told you can get a review copyon its release in August through your friendly neighborhood Lexis/Nexis rep.