On January 11, 2011, a District of Columbia district court dismissed with prejudice a False Claims Act case against a government contractor under Rule 9(b) in a relator-only action. See United States ex rel. Folliard v. Hewlard-Packard Co., Civil No. 07-1969 (D.D.C.). The Relator, a former HP sales rep that sold information technology products and services to federal agencies, alleged that HP sold non-conforming products to the government. Specifically, the Relator alleged that HP's contract with the United States was covered by the Trade Agreements Act, which generally prohibits the United States government from purchasing products that originated in non-designated countries. The Relator contended that, in 2007, he identified 38 HP products that were incorrectly identified as originating in a designated country, when, in fact, the products were from China, a non-designated country. The Relator further alleged that each time HP listed these products on the website for the government contract in 2007, 2008, and 2009, HP knowingly made a material false statement, causing, in turn, the submission of a false claim each time one of the misidentified products was purchased by the United States government.

The Relator asserted four counts in his complaint, but really asserted only two FCA violations -- one for false claims and one for false statements. Because the FCA was amended in 2009 by FERA, the relator included two counts for each statutory violation, alleging one count each under the current statute as well as its prior version. The court observed that it was unnecessary for the Relator to assert claims under the pre and post FERA versions of the FCA because the FERA changes to §3729(a)(1) (applicable to false claims) and (a)(2) (applicable to false statements) are not material to a presentment claim to the United States government.

The court then dismissed the entire complaint under Rule 9(b) because the complaint failed to identify (1) any false claims submitted to the United States by HP; (2) the date of any such claims; (3) the content of any such claims; (4) the products for which the government was actually billed; (5) any individuals involved in the alleged fraud; and (6) the length of time between the alleged fraudulent practice and submission of claim for payment. In arriving at this conclusion, the court observed that the complaint consisted of little more than a list of 38 HP products available for sale on the government contract website that mistakenly identify the country of origin. The Relator did not provide any information as to whether any of these products were, in fact, purchased by the United States and instead speculated that because at least some of the products with similar item number suffixes are commonly used and purchased, it was therefore highly likely that at least some of the products were purchased by the government. A copy of the complaint that was dismissed can be found here and a copy of the court's decision can be found here.