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Disputes & Enforcement

Our litigators have well-deserved reputations for navigating novel, complex, and high-stakes disputes against government authorities and private parties.

Administrative Procedures Act Challenges

We represent clients in rulemaking procedures and related actions against the Government under the Administrative Procedure Act (“APA”).  The APA requires the Government to avoid taking actions that are “arbitrary or capricious” or otherwise violate the law.  We are adept at using the APA as a powerful tool in shaping an agency’s regulations on the front end, and then challenging non-compliant agency actions on the back end.  

  • After filing an APA suit in federal district court for de facto blacklisting our client by terminating its eligibility to receive subcontract awards, successfully convinced the agency to reinstate our client’s eligibility.
  • When an agency's aggressive regulatory interpretation threatened our client's business model, we worked hand-in-hand with the client to develop a comprehensive litigation strategy on both procedural and substantive grounds, ultimately reversing the Agency's improper positions.

Contract Claims

We bring a unique, multidisciplinary approach to resolving claims with a track record of success that has yielded over $1+ billion in claims recovery—including a single award of $240+ million affirmed by the U.S. Court of Appeals for the Federal Circuit.  We litigate before the Boards of Contract Appeals and at the U.S. Court of Federal Claims, as well, and often resolve claims through negotiation or mediation.  Our attorneys have hundreds of trial days and oral argument.

  • Using a contingent fee arrangement, litigated breach claim against the Air Force on behalf of a small business that supplied telephones in its lodging rooms on several bases in Germany. The government ultimately paid over $200 million plus an award of attorneys fees under EAJA.
  • Represented Middle East contractor negotiating multiple large claims against the Army Corps of Engineers for construction projects in Afghanistan. Successfully negotiated a grand bargain to resolve all claims, and received compensation based on a percentage of the recovery.
  • Lead counsel for a Fortune 50 contractor in $90 million Iraq-related claim against the government, settling the case at full value after extensive negotiations with USAID and the National Security Council.

Defective Pricing

Our defective pricing practice is led by David Bodenheimer, who has been recognized in Chambers USA as “an exceptional costs and pricing attorney who is terrific with clients” and “the top expert on defective pricing.”

  • After a four-day trial before the ASBCA, obtained a denial of the Army’s $15 million defective pricing claim against our client, with the ASBCA issuing the most comprehensive decision on the Truth in Negotiations Act (10 U.S.C. 2306a) in 15 years, extending the contractor’s defenses and clarifying the Government’s burden in multiple areas, including cost or pricing data, Governmental reliance, and causation.
  • Litigated six defective pricing and other cost claims, collectively valued at over $78 million, over five years at the ASBCA, with the Government recovering less than a penny on the dollar.
  • Prevailed in the largest defective pricing claim ($299 million) litigated under TINA.
  • Lead counsel for a large defense contractor for seven defective pricing litigations before the ASBCA in which the Army alleged contract overpricing in excess of $23 million, plus six audits alleging over $57 million, for a combined total of over $80 million. Our litigation strategy included focusing on (1) an issue largely un-litigated involving the Government’s admitted loss and destruction of critical audit and business records; (2) negligent audit processes where the Government failed to investigate its own files for the critical element of Government knowledge; and (3) novel issues regarding intervening causation, inconsistent Government audit and contract allegations, and cardinal contract changes with very limited precedent over the past 30 years. Based on the deposition testimony we elicited from DCAA and DCMA personnel on these issues, as well as our analyses of the documentary record, we resolved all seven litigations for less than 3 cents on the dollar.

Employment Disputes

We resolve employment disputes through negotiation, mediation, arbitration, and litigation when necessary.  Such disputes can relate to terminations, non-compete and non-solicitation agreements, and theft of intellectual property.

  • Successfully managed a court-appointed mediation between a contractor and a former chief executive based on a termination and severance claim.
  • Representing a large contractor in litigation against a former employee and his new employer, a competitor to our client, to enforce a non-compete agreement and ensure the proper return and destruction of stolen intellectual property.

False Claims Act

Our multidisciplinary team has successfully navigated hundreds of civil, criminal, congressional, and administrative False Claims Act cases and investigations. Our experience shows that defense strategies are not “one size fits all.”  Rather, they should be tailored to each circumstance and each client’s definition of success –  factoring in the factual record, business interests and priorities, likelihood of ancillary proceedings such as suspension/debarment or shareholder suits, availability of insurance coverage, and other relevant considerations.  Our unique approach to these matters enables us to identify and evaluate the options that would allow our clients most likely to achieve success.

  • Represented foreign construction company in qui tam suit alleging fraud in connection with the building of U.S. Embassy; successfully argued dismissal of suit at summary judgment stage and affirmance of the dismissal by the U.S. Court of Appeals for the Fourth Circuit.
  • Represented a munitions manufacturer in a qui tam suit relating to alleged product substitution and non-conformance with contractual specifications and secured dismissal of the suit with prejudice before trial.
  • Represented a battlefield contractor in a qui tam suit alleging fraud in the performance of security detail contracts; the majority of allegations were dismissed on summary judgment and jury returned verdict for the defendant on all remaining claims.
  • Successfully avoided government (federal and state) interventions and secured dismissal (with prejudice) of claims against client on motions to dismiss multiple amended complaints in FCA/qui tam action alleging improper manipulation of physician compensation arrangements in violation of the FCA, state FCA, Anti-Kickback Statute, and Stark Statute.
  • Represented pump manufacturer at trial and on appeal to victory against Government in a long-running False Claims Act/qui tam case involving the Export-Import Bank of the United States (Ex-Im). Following grand jury proceedings resulting in no criminal indictment, the Government intervened in the civil FCA/qui tam action, seeking trebled damages in excess of $222 million. During the month-long jury trial, the Government’s common law claims were dismissed with prejudice, and the trial resulted in a judgment of zero ($0) damages, notwithstanding a finding of liability as to one FCA count. The Government appealed the judgment to the D.C. Circuit and then the Supreme Court without success.

FEMA Arbitrations

We assist Stafford Act Public Assistance grantees and/or their contractors in appealing FEMA decisions regarding eligibility and grant funding, before the agency and in arbitrations before the Civilian Board of Contract Appeals.  Our team includes former CBCA law clerks with experience analyzing arbitrations for the Board. 

Foreign Corrupt Practices Act

We have successfully represented companies and individuals in connection with U.S. Department of Justice and Securities and Exchange Commission investigations of FCPA violations. 

  • Represented an individual who was investigated for his involvement with a high-priced middleman who was alleged to have bribed government officials in violation of the FCPA, successfully convincing the government that it should not pursue charges.
  • Represented a government contractor in connection with an internal investigation into alleged bribes to government officials in India and advised regarding disclosure obligations and strategy.

Intellectual Property Disputes

Intellectual property is the lifeblood of many contractors, and, at the same time, their government customers are often the most egregious in stealing that IP.  We help contractors protect intellectual property rights through standard contracts, End-User-License-Agreements, Master Subscription Agreements, internal guidance on marking requirements, and enforcement actions against the government and competitors.  We counsel organizations on best practices for protecting its intellectual property and data when working with a government-client and represents organizations to enforce or protect these rights.

  • Represented a small business contractor in bringing a claim against the Federal government for IP theft, including litigating the matter to the Federal Circuit Court of Appeals.
  • For many clients, develop strategies and guidance for protecting IP rights vis-à-vis the government, including identifying sources of funding for the IP, negotiating appropriate clauses, and ensuring proper marking of documents to protect rights.
  • Assisted a client in creating commercial item status for its software and products to utilize its commercial licensing agreement and avoid technical data rights clauses.

Prime-Sub Disputes

Contractors often have conflicts over teaming agreements, revenue sharing agreements, and performance and payment problems.  We seek to negotiate resolutions without litigation when possible, but also regularly litigate and arbitrate disputes when necessary.

  • When our client, a software developer, encountered significant unfunded changes on a fixed-price subcontract, we developed an interpretation of the subcontract that permitted our client to stop work until the prime contractor began following the change order process and paying for changes.
  • Our client entered into a joint venture arrangement to compete for a contract and a subcontracting arrangement to delineate roles and responsibilities and financial issues. When the JV/subcontracting partner sought to stop work until they received more payments than they bargained for, we assisted our client, the lead JV partner and prime contractor, to default terminate the sub (with the government agency's approval) and self perform.

Retaliation Claims

Whistleblowers often file retaliation claims, sometimes in connection with a qui tam suit brought under the False Claims Act.  We have the experience and perspective to recognize that such claims are not merely employment matters and should be handled with the underlying fraud allegations in mind.  Moreover, a retaliation claim can be quite beneficial in helping to resolve False Claims Act allegations.

  • After securing the dismissal of all fraud counts under the False Claims Act, we negotiated a favorable resolution of the remaining retaliation count, resolving the matter for substantially less than what our client’s insurance carrier was willing to cover.
  • Convinced the Department of State to deny relief to a complainant who alleged retaliation under 41 U.S.C. § 4712, notwithstanding the OIG’s finding that the complainant had made protected disclosures and that such disclosures were a contributing factor in the client’s termination of the complainant.
  • Represented a large defense contractor in connection with a qui tam case that alleged multiple fraudulent schemes and that our client terminated the relator in retaliation for his whistleblowing.  After the government declined to intervene in the case, we successfully narrowed the allegations of fraud, leaving just a subset of the allegations including the retaliation count.  We were able to resolve the case before discovery and successfully argued that the allocation of the settlement amount should be heavily tilted toward the retaliation count, which reduced the overall settlement amount while maintaining the same settlement value to the relator.

White Collar Defense

Our white collar defense practice is led by former prosecutors, including the former chief of the Fraud Division of the U.S. Attorney’s Office for DC and the Criminal Division of the U.S. Attorney’s Office for the Southern District of Texas.  In addition to defending criminal procurement fraud and health care fraud matters, we have significant experience defending clients in criminal antitrust, financial services, and environmental matters.

  • Successfully negotiated a corporate Deferred Prosecution Agreement and non-prosecution of all individuals for a government contractor under investigation for alleged bid-rigging in connection with an IDIQ contract.
  • Successfully negotiated a non-prosecution agreement for a government contractor under investigation for allegedly aiding and abetting a violation of the conflict of interest statute and for allegedly obstructing justice during the course of that investigation.
  • Represented a foreign individual accused of front-running in the foreign exchange market, and successfully defeated attempts to extradite our client to the United States.
  • Represented company and its owner (as witness) in connection with federal criminal investigation/prosecution of a pharmacy and its owner charged with 21 counts of wire fraud in violation of 18 U.S.C. § 1343; seven counts of aggravated identity theft in violation of 18 U.S.C. § 1028(a)(1) and (b); five counts of violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); and three counts of money laundering in violation of 18 U.S.C. 1957; and seeking forfeiture.
  • Represented the CEO of an overseas sausage casings manufacturer in a multi-national antitrust cartel investigation and successfully avoided all charges.
  • Represented a government contractor and its CEO in a grand jury investigation by the Department of Justice’s Antitrust Division into alleged bid-rigging and price-fixing on government contracts for language services. We were retained after the CEO was informed that she was a target in the investigation to assist with responding to the government investigation, conducting an internal investigation, coordinating on suspension and debarment issues, and negotiating a favorable resolution. After the Division’s Field Office recommended prosecution, we made presentations to its leadership and to the Division’s Front Office, including the Assistant Attorney General, to persuade it not to pursue prosecution of the CEO and negotiated a Deferred Prosecution Agreement for the company.

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