Former senior engineer at Lockheed Martin Corp., Darrol Olsen, filed a False Claims Act lawsuit against Lockheed, alleging that Lockheed used inferior and defective coatings on F22 aircraft. The coatings are allegedly critical for the F22s stealth capability. The U.S. Air Force purchased 648 of these F-22s from Lockheed at a cost of about $87 billion. The Government did not intervene in the lawsuit, and the district court dismissed the complaint because Olsen failed to plead the claims with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. The 11th Circuit affirmed the district court’s opinion. See United States ex rel. a.k.a. SEAL 1 v. Lockheed Martin Corp., Case No. 10-14763, 2011 WL 2150052 (11th Cir. June 1, 2011).
The 11th Circuit found significant that Olsen did not allege that the misrepresentations made by Lockheed officials played any role in the U.S. Air Force’s decision to make payments on the claims submitted by Lockheed for the F22s. The particulars of the allegedly false claims missing from the complaint included:
- the number of claims presented;
- the dates on when the claims were made;
- terms of payment;
- what representations were made at the time Lockheed sought payment; and
- how the representations were false and fraudulent.
The 11 Circuit held, as courts have frequently stated, the failure to allege sufficient specifics of the “who, what, where and when of alleged false statements” is fatal to the FCA complaint.