Brian Tully McLaughlin

False Claims Act / Qui Tam Litigation and Investigations

• Overturned Jury Verdict on Appeal. In United States ex rel. Purcell v. MWI Corp., No. 1:98-CV-02088 (D.D.C.), served as lead trial and appellate counsel in one of the longest-running False Claims Act / qui tam cases ever. Chaired two-week jury trial in the U.S. District Court for the District of Columbia in qui tam suit alleging the submission of false documents to the Export-Import Bank of the United States (Ex-Im) in connection with loans guaranteed by Ex-Im in furtherance of irrigation projects in Nigeria in which the government intervened and sought treble damages in excess of $222 million. Tully co-led the trial team, presented closing arguments, and argued the damages and many other issues to the court. The result was a judgment of penalties only with zero damages. The government appealed the damages judgment and MWI cross-appealed on liability. The D.C. Circuit overturned the jury verdict and remanded with instructions to enter judgment for MWI, finding that MWI was not liable because it had reasonably interpreted an ambiguous regulation. The government’s petition for rehearing en banc was denied, as was the relator's petition for certiorari to the Supreme Court. See United States ex rel. Purcell v. MWI Corp., 15 F. Supp. 3d 18 (D.D.C. 2014); United States ex rel. Purcell v MWI Corp., 807 F.3d 281 (D.C. Cir. 2015), reh’g en banc denied, cert denied, 137 S.Ct. 625 (2017).
• Defense Verdict, Affirmed on Appeal. Managed successful defense of security contractor in United States ex rel. Davis v. U.S. Training Center, No. 08-cv-1244 (E.D. Va.) in two-week jury trial in the U.S. District Court for the Eastern District of Virginia against qui tam relators' claims of fraudulent overbilling for labor and reimbursable items on $1.2 billion international security services contract with Department of State in Iraq and Afghanistan. The majority of the relators' claims were dismissed on summary judgment, and the jury returned a "no liability" verdict on the remaining claims. On appeal, Tully argued the evidentiary issues before the Fourth Circuit, resulting in a full affirmance of the trial court, and costs to the defendant. See United States ex rel. Davis v. U.S. Training Center, Inc., 498 Fed. Appx. 308, 2012 WL 6052051 (4th Cir. Dec. 6, 2012).
• TAA / GSA Fraud Claims Dismissed, Affirmed on Appeal. Represented three defendants in False Claims Act qui tam suit alleging that multiple GSA Schedule contractors marketed and sold products with countries of origin that are not compliant under the Trade Agreements Act. The suit alleged liability under the implied certification theory, asserting that the defendants impliedly certified compliance with the TAA with each sale of products from its schedule contract. Obtained dismissal with prejudice of all claims pursuant to Fed. R. Civ. P. 9(b) and 12(b)(6), and on appeal the Seventh Circuit affirmed. See United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834 (7th Cir. 2018); United States ex rel. Berkowitz v. Automation Aids, et al., No. 13-c-08185, 2017 WL 1036575 (N.D. Ill. Mar. 16, 2017).
• Dismissal at Pleading Stage. In United States ex rel. Beauchamp v. Academi Training Center, Inc., No. 1:11cv371 (E.D. Va.), obtained dismissal of all FCA counts and stay of retaliation claims, the latter of which thereafter settled. See United States ex rel. Beauchamp v. Academi Training Center, Inc., 933 F. Supp. 2d 825 (E.D. Va. 2013); United States ex rel. Beauchamp v. Academi Training Center, Inc., 2013 WL 1332028 (E.D. Va. Mar. 29, 2013).
• Non-Intervention and Dismissal. In United States ex rel. Morgan v. ManTech Int'l Corp., No. 1:13-cv-01289-TSC (D.D.C.), represented client in defense of FCA qui tam action alleging fraud with respect to maintenance services contracts with the military overseas. The government declined to intervene and the case was dismissed.
• Resolved Retaliation Claim. Represented publicly chartered private corporation in defense of FCA retaliation action filed in the U.S. District Court for the District of Columbia alleging fraud related to the promotion of U.S. tourism. After filing a motion to dismiss, the case settled and was dismissed.
• Represented defense contractor in False Claims Act investigation resulting in no action taken nor lawsuit filed against the client.

Government Contracts Claims and International Litigation

• Recovery of Lost Profits, Damages, and Extra Work. Represented SUFI Network Services, Inc., in 23-day hearing on entitlement and damages before the Armed Services Board of Contract Appeals (ASBCA No. 55306) for claims of breach of contract and constructive changes concerning contract with Air Force NAFI on bases located in Germany, that culminated in award of more than $100 million, plus interest. The Board's initial decision and subsequent reconsideration decisions resulted in a total judgment against the government of more than $12 million. Tully represented the contractor in an appeal of the ASBCA's decisions to the Court of Federal Claims, which in No. 11-804C found multiple errors in the Board's damages determinations and awarded over $100 million additional principal. The government appealed, and the Federal Circuit also found errors by the ASBCA but remanded to the Board to make new findings on damages. On remand, the Board awarded SUFI an additional $113 million, plus interest. The government then sought to challenge the Board’s findings in the Court of Federal Claims, but the court dismissed the action with prejudice. The Federal Circuit affirmed, rejecting the government’s assertions that the Board’s opinions failed to comply with the Federal Circuit’s prior mandate. Total recoveries exceed $200 million. See, e.g., SUFI Network Servs., Inc. v. U.S., 108 Fed. Cl. 287 (2012); SUFI Network Servs., Inc. v. U.S., 705 F.3d 1305 (Fed. Cir. 2014); SUFI Network Servs., Inc. v. U.S., 124 Fed. Cl. 511 (2015); SUFI Network Servs., Inc. v. U.S., 817 F.3d 733 (Fed. Cir. 2016).
• Attorney's Fees for Claim Preparation. In SUFI Network Services, Inc. v. United States, No. 11-453C (Fed. Cl.), litigated three-day trial on attorney's fees claim at the Court of Federal Claims, which awarded contractor all of its requested hours at Crowell & Moring's standard rates. The government appealed the CFC's judgment. Tully argued the appeal, resulting in the Federal Circuit affirming the judgment while also granting the client's cross-appeal for overhead and profit. See SUFI Network Servs., Inc. v. U.S., 785 F.3d 585 (Fed. Cir. 2015); SUFI Network Servs., Inc. v. U.S., 113 Fed. Cl. 140 (2013); SUFI Network Servs., Inc. v. U.S., 105 Fed. Cl. 184 (2012); SUFI Network Servs., Inc. v. U.S., 102 Fed. Cl. 656 (2012).
• Record-Setting Attorney’s Fees for Litigation. CFC granted fee petition pursuant to the Equal Access to Justice Act, awarding more than $9 million in fees and expenses, plus interest, for overwhelming success in litigation of damages claims. The CFC awarded fees at C&M’s current market rates due to, among other things, bad faith by the Air Force and DOJ, extensive delay in payment, and C&M’s specialized expertise in government contracts. It is the first government contracts case to win EAJA special factors enhancements, and the largest fee award in a government contracts case. As the CFC held, “Crowell & Moring was extremely successful in achieving a significant award and setting records for damages within government contracts litigation. If ever there were a set of facts supporting a finding that government contracts expertise was essential to a litigation, this is it.” See SUFI Network Servs., Inc. v. U.S., 128 Fed. Cl. 683 (2016).
• Lead counsel for Fortune 50 company with respect to half billion dollar commercial item program, counseling client on government changes and delays while responding to cure notice and threat of termination by customer agency. Negotiated successful settlement and recovery of tens of millions of dollars in changes, delays, and future work for contractor.
• Represented foreign subcontractor in international arbitration against prime contractor in recovering on multiple damages claims arising from subcontracts providing services under the U.S. Army's LOGCAP contract in Iraq.

Pro Bono Litigation and Service

• Representing siblings from El Salvador in seeking asylum on the basis of protected social group status after they fled from horrific violence and threats to their family and themselves.
• Successfully argued and won a grant of summary judgment on client's claim of violation of Fifth Amendment due process rights in connection with parole conditions imposed by the United States Parole Commission, and recovered attorney's fees.
• Represented elderly Chilean immigrant woman in a two-day trial in Loudoun County Circuit Court in housing dispute concerning a real estate contract. Successfully defeated summary judgment motion and obtained restitution judgment for client, enabling her to purchase a home of her own free and clear.
• Partnered with Washington Lawyer's Committee for Civil Rights 2008 National Election Protection efforts as a team leader of the Northern Virginia command center, training and assigning attorney volunteers at precincts and coordinating responses to legal impediment at the polls on Election Day.
• Represented Equal Rights Center and individual plaintiffs in federal suit against national fast-food restaurant chain. Negotiated settlement of ADA claims of discrimination against persons with disabilities due to access barriers at the entrances, service lines, and bathrooms of the stores.