Monday, July 8, 2019
The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of claims brought by a law firm under a "novel theory."
"Pecunia non satiat avaritiam, sed inritat” translates from Latin to English as “money doesn’t satisfy greed; it stimulates it.” This case teaches that money also stimulates legal artifice. For over one hundred and fifty years, the False Claims Act (FCA) has imposed civil liability on anyone who defrauds the federal government of money or property. See generally Act of March 2, 1863, ch. 67, 12 Stat. 696 (1863) (codified as amended at 31 U.S.C. §§ 3729 et seq.). A third party—a relator—may bring an FCA lawsuit on behalf of the government and collect a substantial bounty if he prevails. See 31 U.S.C. § 3730(b), (d). Today we review a relator’s novel theory of FCA liability.
The law firm Kasowitz Benson Torres LLP (Kasowitz) alleges that a handful of large chemical manufacturers violated the Toxic Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976) (codified as amended at 15 U.S.C. §§ 2601 et seq.) (TSCA), by repeatedly failing to inform the United States Environmental Protection Agency (EPA) of information regarding the dangers of isocyanate chemicals. Kasowitz claims the defendant-chemical manufacturers’ failure to disclose and subsequent actions deprived the government of property (substantial risk information) and money (TSCA civil penalties and contract damages). Kasowitz demands billions of dollars in damages, even though the government openly supports the defendants. The district court dismissed its lawsuit. Kasowitz now appeals, asking us to become the first court to recognize FCA liability based on the defendants’ failure to meet a TSCA reporting requirement and on their failure to pay an unassessed TSCA penalty. We decline the invitation and affirm the dismissal.