MEMORANDUM OPINION

Relator Anthony Head brings this qui tam action, pursuant to the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., against Defendants Kane Company (“the Company”), Settles Associates, Inc., the Perara Group, Inc., Management Alternatives, Inc., Harris Design Group, P.C., as well as Kane Company officers, John Kane, Ronald Meliker, James Durfee, William Auchter, and Buck Whitman.^[1] Relator also brings breach of contract and state law tort claims against Defendants Kane Company, John Kane, and Ronald Meliker.

The U.S. Government has intervened in Relator’s qui tam action and brings suit for violations of the FCA against Defendants Kane is President and CEO of Kane Company, and Defendant Ronald Meliker is Executive Vice President and COO of Kane Company. Id. ¶¶ 17, 19.

During his employment by the Company, Relator served in various positions, including Project Manager Coordinator and Vice President of various Kane Company subsidiaries. Id. In these capacities, Relator attended various Company meetings, including at the executive-level, and reviewed a number of Kane Company’s government contracts. Id. ¶ 36.

Since at least 1980, Kane Company has entered into various agreements, governed by the Service Contract Act (“SCA”), 41 U.S.C. § 351 et seq., to provide moving and other services to various Government agencies. Id. ¶ 6. Beginning some time in 1998, Relator learned that Kane Company had regularly failed to pay SCA-required wage determinations on a number of these government contracts.^[4] Id. ¶¶ 36-44. On various occasions, Relator spoke to Kane Company officers, including Defendants John Kane and Ronald Meliker, about these problems. Id. To Relator’s knowledge, these officials took no action to correct these practices. Id.

At different times between 2002 and 2005, Relator also attended various executive-level meetings in which Kane Company officials, including Defendants John Kane and Ronald Meliker, discussed the following illegal practices: (1) fraudulently billing the Government for employee services that were not provided and double billing for employee work;(2) overcharging the Government for fuel costs; and (3) refraining from providing the “best price,” i.e. the price paid by the Company’s comparable commercial customers, as required by 48 C.F.R. § 552.215-72, when “negotiating to enter” the Government’s General Services Administration (“GSA”) Schedule or when submitting bids for GSA Schedule Contracts. Id. ¶¶ 45-52.

In 2004, Relator met with Mary Perara, CEO of the Perara Group, a member of the Small Business Administration’s (“SBA”) Section 8(a) program for certified minority-owned businesses. Id. ¶ 53. At this meeting, the parties discussed a possible partnership between Defendant Kane Company and the Perara Group on government contracts reserved for Section 8(a) companies. Id. Following this meeting, Relator did not recommend proceeding with the partnership, since the Perara Group had no experience with the type of services Defendant Kane Company provided. Id. After leaving Kane Company, Defendant learned that the Perara Group had obtained several Section 8(a) contracts with the Government. Id. ¶ 54. Relator believed that Defendant Kane Company entered into an illegal agreement with the Perara Group to perform most of the work on these contracts in exchange for a portion of the Section 8(a) contract funds. Id. ¶¶ 54-55.

On January 10, 2005, Defendant Kane Company terminated Relator for poor performance. Id. ¶ 14; Defendants’ Motion to Dismiss Relator’s Second Amended Complaint and United States’ Complaint in Intervention, 4 (“Defs.’ Mot.”) (Mar. ^[8], 2010) [Dkt. No. 82]. Approximately two weeks later, Relator and Defendant Kane Company entered into a Separation Agreement in connection with Relator’s termination. Defendant Kane Company’s Answer and Counterclaims, Ex. A. ¶ 4 (July 24, 2009) [Dkt. No. 56-1].

On February 11, 2005, Relator filed a sealed Complaint in this Court, which he subsequently amended on March 1, 2007 [Dkt. No. 15]. In these Complaints, Relator alleges that Defendants Kane Company, John Kane, and Ronald Meliker violated the FCA by engaging in the aforementioned fraudulent schemes.

On March 26, 2009, following a four year investigation into Relator’s allegations, the United States intervened in this case [Dkt. No. 45]. On April 27, 2009, the Government filed its Complaint in Intervention. On July 24, 2009, Defendant Kane Company filed an Answer and Counterclaims to the U.S. Complaint and Relator’s First Amended Complaint [Dkt. No. 56], raising two affirmative defenses against the Government’s allegations and twelve state law counterclaims against Relator.^[5]

On February 16, 2010, Relator filed a Second Amended Complaint [Dkt. No. 77], raising claims of unlawful retaliation under the FCA, breaches of the Separation Agreement, and common law tort claims against Defendants. On March 8, 2010, Defendants filed a Motion to Dismiss Relator’s Second Amended Complaint and United States’ Complaint in Intervention. On April 19, 2010, the United States filed an Opposition to Defendants’ Motion to Dismiss (“U.S. Opp’n”) [Dkt. No. 92]. On May 4, 2010, Relator filed an Opposition to Defendants’ Motion to Dismiss (Rel. Opp’n) [Dkt. No. 94]. On May 7, 2010, Defendants filed a Reply in Support of Their Motion to Dismiss (Defs.’ Reply) [Dkt. No. 95]. On May 27, 2010, Relator filed a Notification of Supplemental Authority and Surreply to Defendants’ Reply in Support of Their Motion to Dismiss (“Surreply”) [Dkt. No. 98].

On October 13, 2010, Relator Head filed a Third Amended Complaint, adding several new factual allegations and raising a claim for injunctive relief to prevent Defendants from further violating the Separation Agreement. On November 15, 2010, Defendants filed a Motion to Dismiss Relator’s Third Amended Complaint, responding to the new allegations raised in the Third Amended Complaint and incorporating the arguments from their Motion to Dismiss the Second Amended Complaint.^[6] On November 23, 2010, Relator filed a Memorandum in Opposition (“Rel. Supp. Opp’n”) [Dkt. No. 116]. On December 3, 2010, Defendants filed a Reply in Support of Their Motion to Dismiss Relator’s Third Amended Complaint (“Defs.’ Supp. Reply”)[Dkt. No. 117].7

II. Standard of Review

A. Rule 12(b)(6)

Under Rule 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotations omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than “merely consistent with” a defendant’s liability; “the pleaded factual content [must] allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1940 (citing Twombly, 550 U.S. at 556). In deciding a Rule 12(b)(6) motion, the court may consider any documents attached to or incorporated into the complaint, matters of which the court may take judicial notice, and matters of public record. E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563. Under the standard set forth in Twombly, a “court deciding a motion to dismiss must . . . assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet, 525 F.3d at 17 (citations and internal quotations omitted). See also Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C. Cir. 2009) (declining to reject or address the government’s argument that Iqbal invalidated Aktieselskabet).

B. Rule 9(b)

Rule 9(b) requires that a “party [] state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Claims brought under the FCA state an action in fraud, and therefore are subject to Rule 9(b)’s pleading requirements. U.S. ex. rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004).

Courts must not rigidly apply the requirements of Rule 9(b), but rather should analyze the Rule on a case by case basis. U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am. Inc., 238 F. Supp. 2d 258, 269-70 (D.D.C. 2002). Thus, while some courts have required greater specificity in the allegations of fraud, such heightened pleading requirements may not be appropriate in each and every case. Id. at 270.

In deciding Rule 9(b) cases, courts should also be guided by the Rule’s purpose to “discourage the initiation of suits brought solely for their nuisance value, and [to] safeguard potential defendants from frivolous accusations of moral turpitude . . . . And because fraud encompasses a wide variety of activities, the requirements of Rule 9(b) guarantee all defendants sufficient information to allow for preparation of a response.” Martin-Baker, 389 F.3d at 1256 (citations and internal quotations omitted) (alteration in original). A court should “hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” U.S. ex rel. Barrett v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 28, 34 (D.D.C. 2003).

III. Analysis

Plaintiffs allege that various Defendants violated the FCA by conspiring to and in fact defrauding the U.S. Government. 3d. Am. Compl., Counts 1-3; U.S. Compl., Count 1.

In his Third Amended Complaint, Relator also brings the following additional claims. First, Relator claims that Defendant Kane Company violated Section 3730(h) of the FCA by retaliating against him for his protected activities.^[8] 3d. Am. Compl., Count 4.

Second, Relator raises claims against Defendant Kane Company for breach of the Separation Agreement, and also brings various tort law claims against Defendants Kane Company, John Kane, and Ronald Meliker. Id. Counts 5-12.9 Finally, Relator requests a temporary restraining order, as well as preliminary and permanent injunctive relief, enjoining Defendant Kane Company and its officers from further breaching the Separation Agreement. Id. Count 13.

Defendants have moved to dismiss all the foregoing claims. In his Opposition to Defendants’ Motion to Dismiss the Third Amended Complaint, Relator has withdrawn his claim for injunctive relief in Count 13. Rel. Supp. Opp’n 1 n.1. The Court, therefore, will dismiss that Count with prejudice. The Court will now consider Defendants’ arguments against Plaintiffs’ remaining claims.

A. Plaintiffs’ Fraud Claims Under the FCA

The FCA provides a civil penalty and treble damages against any individual who: (1) knowingly presents or causes to be presented a false or fraudulent claim for payment or approval by the United States, 31 U.S.C. § 3729(a)(1); (2) knowingly makes, uses, or causes to be made or used, a false record or statement material to getting a false or fraudulent claim paid or approved by the Government, id. § 3729(a)(2); or (3) conspires to defraud the United States by getting a false or fraudulent claim allowed or paid, id. § 3729 (a)(3).10 To enforce these and other provisions of the FCA, a private person, known as a “relator,” may bring a civil or “qui tam” action in the Government’s name. 31 U.S.C. § 3730(b)(1). If the Government decides to intervene, it shall then have the primary responsibility for prosecuting the action, although the relator may continue as a party to the case, subject to certain limitations enumerated in the statute. Id. § 3730(c)(1).

Relying on the foregoing provisions, Relator alleges that Defendants Kane Company, John Kane, and Ronald Meliker violated Sections 3729(a)(1), (a)(2), and (a)(3) of the FCA by avoiding payment of SCA-required wages to employees working on the Company’s government contracts. 3d. Am. Compl. ¶¶ 103-15, 116-119, 125-26. In its Complaint in Intervention, the Government joins in this allegation, but brings its claim only against Defendant Kane Company and its subsidiaries, including Office Movers and Office Installers, Inc. See generally, U.S. Compl.

Defendants urge the Court to dismiss Plaintiffs’ FCA claims on four grounds. First, Defendants argue that Plaintiffs “have not pled the requisite objective false statement underlying their FCA [Section 3729(a)] claims.”11 Defs.’ Reply 9. Second, Defendants argue that Plaintiffs have not “demonstrate[d] that SCA compliance was material to the Government’s decision to pay” under the Kane Company’s government contracts. Id. at 14. Third, Defendants argue that some of Relator’s conspiracy claims under Section 3729(a)(3) must be dismissed pursuant to Rule 12(b)(6). Defs.’ Mot. ^[11] n.4; Defs.’ Reply 15 n.16. Fourth, Defendants argue that all claims brought by Plaintiffs under Section 3729(a) of the FCA must be dismissed for failure to meet Rule 9(b)’s pleading requirements. Defs.’ Mot. 8-11.

1. Plaintiffs Have Adequately Alleged “False Claims” Under the FCA

Although Defendants rely on Rule 9(b) to argue that Plaintiffs have failed to plead the “objective false statement[s]” underlying their fraud claims, Defs.’ Reply 9-17, they are in actuality raising a Rule 12(b)(6) challenge. U.S. ex rel. Folliard v. CDW Tech. Servs., 722 F. Supp. 2d 20, 27-28 (D.D.C. 2010)(citation and internal quotations omitted). Defendants argue that both Relator and the Government fail to allege that “any” false claims were made to the Government. It is axiomatic that a plaintiff bringing an action for fraud under the FCA must, first and foremost, allege that an actual “false claim” was presented to the Government. See U.S. ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551 (D.C. Cir. 2002) (holding that the FCA “attaches liability [] not to underlying fraudulent activity, but to the claim for payment”) (citation and internal quotations omitted).

The FCA defines “claims” to include “any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any of the money or property which is requested or demanded.” 31 U.S.C. § 3729(c). Congress has emphasized that the FCA should be broadly interpreted “to reach all types of fraud . . . that might result in financial loss to the Government.” United States v. Neifert-White Co., 390 U.S. 228, 232,

8 S. Ct. 959 (1968). Accordingly,“‘[f]alse claims’ under the FCA take a variety of forms.” SAIC, 626 F.3d at 1266. These include: (1) presentment claims; (2) fraudulent inducement claims; and (3) false certification (express or implied) claims. See U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321, 1326 (D.C. Cir. 2005)(recognizing that claims based upon fraudulent inducement are actionable under the FCA); SAIC, 626 F.3d 1257, 1266 (endorsing implied false certification theory as basis for FCA claims in D.C. Circuit).

The elements of a presentment claim are that “(1) the defendant submitted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false.” Folliard, 722 F. Supp. 2d at 26. Fraudulent inducement claims consist of “claim[s] submitted to the Government under a contract which was procured by fraud, even in the absence of evidence that the claims were fraudulent in themselves.” Bettis, 393 F.3d at 1326. False certification claims “rest[] on a false representation of compliance with an applicable federal statute, federal regulation, or contractual term.” SAIC, 626 F.3d at 1266.

While presentment claims consist of explicitly false or fraudulent demands for payment, id., fraudulent inducement and false certification claims do not depend on the existence of such explicitly false payment requests. Instead, those two types of claims require the making of initial false representations to the Government. See Bettis, 393 F.3d at 1328 (fraudulent inducement); SAIC, 626 F.3d at 1266-67 (implied false certification). An initial false representation occurs when a party makes promises at the time of contracting that it intends to break. Bettis, 393 F.3d at 1329.

Relying on these forms of fraud, Plaintiffs allege that Defendants submitted “false claims” to the Government. Defendants contend, however, that Plaintiffs’ allegations fail to qualify as “false claims” because: (1) they have not alleged any explicitly false or fraudulent demands for payment on which to base a presentment claim; and (2) they have not alleged any “[initial false representation] or certification on which to base a fraud-in- the-inducement or implied certification [claim].” Defs.’ Reply 9- 11, 12-16.12 Defendants’ arguments fail for the following reasons. a. Plaintiffs’ Presentment Claims Adequately Allege Explicitly False or Fraudulent Demands for Payment

Defendants argue that Plaintiffs’ presentment claims do not “identify” any explicitly false or fraudulent demands for payment made by Defendants to the Government. Defs.’ Reply 9-11, 15-16. This argument misstates the standard Plaintiffs must meet in a Rule 12(b)(6) motion. Although a plaintiff must, of course, provide evidence of these false statements at some point, she is not required to do so at the early stages of litigation. See Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (holding that “using Rule 12(b)(6) . . . to weed out what appear to be factually- deficient cases may be incompatible with Rule 8”). Rather, to survive a 12(b)(6) motion, plaintiff need only “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F. Supp. 2d 129, 133 (D.D.C. 2010) (citation and internal quotations omitted). In short, the complaints “need not plead law or match facts to every element of a legal theory.” Krieger, 211 F.3d at 136 (citation and internal quotations omitted).

Plaintiffs’ presentment claims adequately allege the existence of explicitly false or fraudulent demands for payment. First, the Government clearly alleges that Defendant Kane Company submitted explicitly false invoices to the Government under SCA contracts. See U.S. Compl. ¶ 15. Second, Relator also alleges that explicitly false demands for payment were made under several Kane Company contracts governed by the SCA. See, e.g., 3d. Am. Compl. ¶¶ 39-40. Finally, Relator’s claims regarding the fraudulent billing of employee work and fuel surcharges are based, at least in part, on allegations that explicitly false bills were submitted to the Government.^[13] See id. ¶¶ 46, 62, 65.

b. Plaintiffs’ Fraudulent Inducement and False Certification Claims Adequately Allege Initial False Representations i. Fraudulent Inducement

Relator argues that, because Defendants originally obtained various government contracts through fraud, the theory of fraudulent inducement supports treating all subsequent demands for payment pursuant to those contracts as “false claims.” Rel. Opp’n 13-15. Specifically, Relator’s allegations raise the reasonable inference that Defendants implicitly made or caused to be made, in the course of executing their government contracts, the following false or fraudulent representations to the Government.

First, with regard to the SCA claims, Relator alleges that Defendant Kane Company entered into numerous Government contracts, intending to flout the contracts’ SCA wage requirements. See generally, U.S. Compl. See also 3d. Am. Compl. ¶¶ 35-44, 56-61. This allegation raises the reasonable inference that, in executing these contracts, Defendant Kane Company, by and through its officers, implicitly and falsely represented to the Government that it would comply with the SCA.^[14]

Second, with regard to Defendant Kane Company’s fraudulent billing of employee work which was not performed, Relator alleges that he participated in various executive-level meetings with Kane Company officials in which “it was periodically discussed that there was misconduct concerning the billing and use of employees at staff positions on two or more contracts for the same hours” and “that there was a practice of employees at staff positions . . . for Defendant Kane Company and its affiliates signing in on government time sheets and then leaving the workplace to work on a private sector project or other government job.” Id. This allegation raises the reasonable inference that, in executing government contracts, Defendant Kane Company, by and through its officers, implicitly and fraudulently represented to the Government that it would accurately bill for its services.

Third, with regard to Defendant Kane Company’s fraudulent billing of fuel costs, Relator alleges that during executive-level meetings in 2002-2003 he was told that “Defendant Kane Company would be starting a new practice of adding an ‘energy surcharge’ for fuel. . . . However, Defendant Kane Company already incorporated the fuel charge into its existing pricing and bills submitted to the government.” Id. ¶ 47. This allegation raises the reasonable inference that, in executing government contracts, Defendant Kane Company, by and through its officers, implicitly and fraudulently represented to the Government that it would accurately bill for its fuel costs.

Fourth, with regard to Defendant Kane Company’s failure to provide the GSA best price, Relator alleges that during executive- level meetings in 2003 and 2004, several officers and employees of Defendant Kane Company suggested that they “wanted to bill the government under the GSA Schedule at higher rates than those comparable commercial customers” and that they would “intentionally withhold from the government these comparable commercial customers who were provided [with] lower rates. . . . [so that] Kane company could then negotiate to enter the GSA schedule at higher labor rates than those provided to their best commercial customers.” Id. ¶ 49. These allegations raise the reasonable inference that, in executing GSA contracts, Defendant Kane Company, by and through its officers, implicitly and fraudulently represented to the Government that it had provided accurate information for the GSA schedule.

Finally, with regard to Defendant Kane Company’s relationship with the Perara Group, Relator alleges that: (1) the Kane Company “used the Perara Group as a Section 8(a) ‘pass through’ such that Office Movers, a Kane Company affiliate, can obtain money on government contracts that are intended for SBA certified 8(a) contractors,” id. ¶ 66; and (2) Defendant Kane Company, its officers, and the Perara Group, Inc., knowingly made or caused to be made “false statements to the SBA in which they certified or caused others to certify that Defendant Perara Group [] was acting in compliance with all pertinent laws and regulations, when in fact [the Perara Group] was performing services for numerous government agencies that it was not eligible to bid upon . . . .” Id. ¶ 121. These allegations clearly and explicitly state that, in connection with the Perara Group’s Section 8(a) government contracts, Defendants implicitly made or caused to be made fraudulent representations to the Government that the Perara Group would be providing its services under those agreements. ii. False Certification

The Government argues that “the subsequent invoices claiming payment for satisfactory compliance with the [SCA] contract terms create[d] implied false certification[s]” and thereby constitute “false claims.”15 U.S. Opp’n 12-13. Like Relator, the Government alleges that Defendant Kane Company entered into numerous government contracts intending to ignore the SCA wage requirements. See generally, U.S. Compl. These allegations raise the reasonable inference that, in executing these contracts, Defendant Kane Company, by and through its officers, implicitly and falsely represented that it would comply with the SCA. The Government also clearly alleges that Defendant Kane Company made express false certifications of compliance with the SCA. Id. ¶¶ 13, 18

For the foregoing reasons, Relator and the Government have adequately alleged the existence of “false claims.” The Court, therefore, denies Defendants’ Motion to Dismiss Plaintiffs’ FCA fraud claims on these grounds.

2. Plaintiffs Have Adequately Alleged that the SCA Is Material

Defendants also urge dismissal of Plaintiffs’ SCA-based claims on the grounds that “[plaintiffs] allege nothing to demonstrate that [] SCA compliance was material to the Government’s decision to pay under the contract.”16 Defs.’ Reply 14-16. While Defendants present this challenge under Rule 9(b), their argument, again, amounts to a Rule 12(b)(6) claim.

To state a claim under the FCA, a complaint must allege that the false or fraudulent statements were material. Bender v. N. Am. Telecomm’ns, Inc., 686 F. Supp. 2d 46, 49 (D.D.C. 2010)[hereinafter “Bender II”]. Generally, a false claim is material if “it has a natural tendency to influence agency action or is capable of influencing agency action.” U.S. ex rel. Fago v. M & T Mortg. Corp., 518 F. Supp. 2d 108, 118 (D.D.C. 2007) (citing United States v. TDC Mgmt. Corp., 24 F.3d 292, 298 (D.C. Cir. 1994)). See also U.S. ex rel. Ervin and Assocs., Inc., v. Hamilton Sec. Group, Inc., 370 F. Supp. 2d 18, 45 (D.D.C. 2005) (holding that false claim is material if “compliance with the presented claims must have been so important to the contract that the government would not have honored the submission for payment on the claim if it were aware of the violation”).

Defendants argue that Plaintiffs have failed to cite contractual language establishing that “SCA compliance is a mandatory condition for the Government to pay under any contract.”17 Defs.’ Reply 14, and have therefore “allege[d] nothing to demonstrate that [] SCA compliance was material . . . .” Id. Essentially, Defendants argue that, in order to establish materiality, Relator and the Government must point to express contractual language establishing that compliance with the SCA was a mandatory condition of payment. This argument fails for two reasons.

First, Plaintiffs are not required under Rule 12(b)(6) to provide such detailed factual evidence. As previously discussed, all they must do at this early stage is plead the essential elements of their claim. In this regard, the Government clearly alleges that the SCA was material to its decision to pay. U.S. Compl. ¶ 16. Relator also made allegations from which it can be reasonably inferred that the SCA was material to the Government’s payment decisions. See 3d. Am. Compl. ¶¶ 107, 114 (“The United States reasonably relied upon Defendants[’] misrepresentations of compliance and/or accuracy in paying all sums due and owing under the [SCA] contracts . . . .”).18

Second, Defendants are incorrect that, under the FCA, compliance with a statutory, regulatory, or contractual requirement is material only if there is express contractual language linking compliance to payment. In SAIC, our Court of Appeals directly addressed this issue and concluded that materiality does not turn on the presence of such express contractual language. In that case, which involved an FCA claim based upon the theory of implied false certification, the court held that:

The existence of express contractual language specifically linking compliance to eligibility for payment may well constitute dispositive evidence of materiality, but it is not . . . a necessary condition. The plaintiff may establish materiality in other ways, such as through testimony demonstrating that both parties to the contract understood that payment was conditional on compliance with the requirement at issue.

SAIC, 626 F.3d at 1269. Accordingly, whether at the motion to dismiss or merits stage of this litigation, Plaintiffs are not required to point to express contractual language to establish that SCA compliance was material to the Government’s decision to pay in this case, and they “may establish materiality in other ways.”19 Id.

For the foregoing reasons, Plaintiffs have adequately alleged that compliance with the SCA was material to the Government’s decisions to pay under the SCA-regulated contracts. Accordingly, the Court denies Defendants’ Motion to Dismiss Plaintiffs’ SCA fraud claim for failure to allege materiality.

3. Relator’s FCA Conspiracy Claims Must Be Dismissed in Part for Failure to State a Claim

Pursuant to Rule 12(b)(6), Defendants move to dismiss two of Relator’s FCA conspiracy claims. First, Defendants urge dismissal of the broad claim that Defendant Kane Company variously conspired with Defendants John Kane and Ronald Meliker to violate the FCA. Defs.’ Mot. ^[11] n.4. Second, Defendants argue that the claim that Defendants conspired with the Perara Group to use the company as a “pass through” for Section 8(a) contracts should be dismissed with respect to Defendants John Kane and Ronald Meliker because the Perara Group has not been served or appeared in this case. Defs.’ Reply 15 n.16.

Section 3729(a)(3) of the FCA attaches liability to anyone who “conspires to defraud the Government by getting a false or fraudulent claimed allowed or paid.” Although the FCA does not define the term “conspiracy,” the “courts have held that general civil conspiracy principles apply to FCA conspiracy claims.” Westrick, 685 F. Supp. 2d at 140. In this case, two principles of civil conspiracy law are central to evaluating Defendants’ challenge: (1) the intra-corporate conspiracy doctrine, Fago, 518

F. Supp. 2d at 117; and (2) the principle that a civil conspiracy claim need not be brought against all co-conspirators, Ass’n for Intercollegiate Athletics for Women v. Nat’l Collegiate Athletic, 558 F. Supp. 487, 498 (D.D.C. 1983).

Under the intra-corporate conspiracy doctrine, “a corporation cannot conspire with its employees, and its employees, when acting in the scope of their employment, cannot conspire among themselves.” Fago, 518 F. Supp. 2d at 117. Here, there is no dispute that Defendants John Kane and Ronald Meliker have been employees of the Kane Company at all times relevant to Relator’s conspiracy claim. Accordingly, Defendant Kane Company could not have “conspired” with Defendants John Kane and Ronald Meliker to violate the FCA. Therefore, the Court must grant Defendants’ Motion and dismiss this part of Relator’s conspiracy claim under Count 3. See 3d. Am. Compl. Count 3 ¶¶ 117-20, 123.

Additionally, it is well-settled that “all co-conspirators need not be joined to permit any one or more to be held liable for an unlawful conspiracy.” Ass’n for Intercollegiate Athletics for Women, 558 F. Supp. at 498. Accordingly, the Perara Group’s absence from this case does not preclude a claim from being brought against Defendants John Kane and Ronald Meliker for allegedly conspiring with the Group to use it as a “pass through” for Section 8(a) contracts. While Defendant Kane Company also stands accused of participating in that conspiracy, the intra-corporate conspiracy doctrine does not apply “because there are alleged participants in the conspiracy who are not employees” of the Company. Lerner v.

District of Columbia, 362 F. Supp. 2d 149, 165 (D.D.C. 2005). The Court, therefore, denies Defendants’ Motion to Dismiss Defendants John Kane and Ronald Meliker from this part of Relator’s conspiracy claim under Count 3. See 3d. Am. Compl. Count 3 ¶¶ 121-22.

4. Plaintiffs’ Fraud Allegations Satisfy Rule 9(b)

Defendants also argue that all of Plaintiffs’ fraud allegations under Section 3729(a) of the FCA lack the necessary details to meet the particularity requirement of Rule 9(b). According to Defendants, these missing details include: (1) “the specific invoices, statements or records submitted to the Government that were supposedly false or fraudulent;” (2) “the particular government contracts to which these invoices, statements, or records pertain;” (3) “the allegedly false or fraudulent information within each such document;” (4) “which Defendant allegedly submitted such document;” (5) “where and when the alleged document submission occurred;” and (6) “the details of the Government’s payment, if any, as a result of Defendants’ allegedly false statements.”20 Defs.’ Mot. ^[2]. In response, Relator and the Government argue that: (1) Defendants’ understanding of Rule 9(b) requires Relator and the Government to “plead evidence instead of allegations” and is divorced from this Circuit’s case law; and (2) the claims satisfy this Circuit’s Rule 9(b) pleading standard for cases involving fraudulent schemes. Rel. Opp’n 1, 18- 26; U.S. Opp’n 8-16.

As is well-established in this Circuit, “the simplicity and flexibility contemplated by the rules must be taken into account” in reviewing a complaint under Rule 9(b). U.S. ex rel. McCready v. Columbia/HCA Healthcare, 251 F. Supp. 2d 114, 117 (D.D.C. 2003). Most importantly, Rule 9(b)’s particularity requirement must be harmonized with Federal Rule of Civil Procedure 8(a), which requires that a complaint only contain a “short and plain statement” of the claim. See U.S. ex rel. Joseph v. Cannon, 642 F.2d 1373, 1386 (D.C. Cir. 1981) (holding that “[t]he requirement of particularity does not abrogate Rule 8, and it should be harmonized with the general directives . . . of Rule 8 . . . .”)(citations and internal quotations omitted); Allen v. Beta Constr., 309 F. Supp. 2d 42, 46 (D.D.C. 2004).

20 (...continued) for each worker;” (8) “the identification of each document in which the Kane Company certified that its performance under these contracts complied with the SCA;” (9) “the invoices or other statements Kane Company provided to the agency in order to procure payment;” and (10) “the payment received.” Defs.’ Mot. 9-10.

As Plaintiffs rightly argue, Defendants’ interpretation of Rule 9(b) eviscerates this standard and, instead, requires claimants to essentially provide detailed proof of their allegations.^[21] It is, however, “inappropriate to require proof on a 9(b) motion to dismiss.” Pogue, 238 F. Supp. 2d at 269. Rather, at this early stage of the litigation, an “[FCA] plaintiff need not allege with specificity every element of its cause of action if the complaint contains allegations from which an inference may be drawn that the plaintiff will produce evidence on the essential elements.” U.S. v. Intrados/Int’l Mgmt. Group, 265 F. Supp. 2d 1,7 (D.D.C. 2002).

In contrast to Defendants’ narrow reading of Rule 9(b), its language makes clear that “particularity [must be pled] only with respect to the circumstances constituting fraud . . . .” Folliard, 722 F. Supp. 2d at 27 (emphasis in original) (citation and internal quotations omitted). Furthermore, “[s]tating ‘with particularity the circumstances constituting fraud’ does not necessarily and always mean stating the contents of [the claim] . . . . It is the scheme in which particular circumstances constituting fraud may be found that make it highly likely the fraud was consummated through the presentment of false [claims].” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009) (emphasis added).

Thus, where an FCA claim is based on a fraudulent “scheme,” Rule 9(b) mandates only that the details of that scheme be stated with particularity. See Folliard, 722 F. Supp. 2d at 30 (“‘[A] relator’s complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.’”(quoting Grubbs, 565 F.3d at 190)).

In such cases, plaintiffs must “set out the details of the specific scheme and its falsehoods, as well as supply the time, place, and content of false representations, and link that scheme to claims for payment made to the United States.” McCready, 251 F. Supp. 2d at 117 (citing Totten, 286 F.3d at 551-52). See Martin- Baker, 389 F.3d at 1256 (holding that Rule 9(b) “require[s] that the pleader . . . state the time, place and content of the false misrepresentation, the fact misrepresented and what was retained or given up as a consequence of the fraud . . . [and] to identify individuals allegedly involved in the fraud”). Where a “scheme spans several years,” “Rule 9(b) does not require plaintiffs to allege every fact pertaining to every instance of fraud. . . .”

Martin-Baker, 398 F.3d at 1259. In particular, plaintiffs are not required to “affix actual claims for payment to the complaint,” Pogue, 238 F. Supp. 2d at 269, or to specifically name which employees of a corporate defendant submitted the false claims, Westrick, 685 F. Supp. 2d at 139. For fraudulent schemes that are particularly complex or extensive, Rule 9(b)’s pleading requirements may be further relaxed.^[22] Bender II, 686 F. Supp. 2d at 52; U.S. ex rel. Harris v. Bernard, 275 F. Supp. 2d 7, 7-8 (D.D.C. 2003). a. Plaintiffs’ SCA-Based Fraud Claims Satisfy Rule 9(b)

Plaintiffs’ allegations regarding the SCA scheme plainly meet Rule 9(b)’s requirements.^[23] Both Relator and the Government detail the circumstances of the fraudulent scheme and the location, Kane Company executive-level meetings, the Company’s government contracts, and invoices submitted to the Government under those contracts.^[24] U.S. Compl. ¶¶ 12, 20-29; 3d. Am. Compl. ¶¶ 36-44, 56-

60. With regard to time, the Government provides a specific time period - from 1998-2003 and 2003-2006 - for the scheme. U.S. Compl. ¶ 12. While Relator provides a more open-ended time-period for the fraudulent plan, alleging that it began in 199925 and continues to “the present time,” even this lengthier time span is sufficient in a case involving a complex, fraud scheme. 3d. Am. Compl. ¶¶ 6, 36. See Harris, 275 F. Supp. 2d at 8 (allegations that complex fraud scheme “began in 1993 and continues into the present” satisfies Rule 9(b)); Pogue, 238 F. Supp. 2d at 268 (allegations that complex fraud scheme occurred over a twelve year period satisfies Rule 9(b)).

Both Relator and the Government also specifically identify those Kane Company personnel involved in perpetrating the scheme,26 and detail the content of the false and fraudulent representations, namely that the Company would comply with SCA requirements when, in fact, it had no intention of doing so. U.S. Compl. ¶¶ 12-29; 3d. Am. Compl. ¶¶ 36-44, 56-60.27

Both Relator and the Government also link Defendants’ false statements to claims for payment made to the United States. U.S. Compl. ¶¶ 10, 15, 18; 3d. Am. Compl. ¶¶ 104-05, 111-12. In fact, on this issue, the Government provides far more detail than Rule 9(b) requires. This includes: (1) providing a sampling of government contracts28 in which Defendant Kane Company failed to comply with the SCA: (2) detailing the total amount paid by the Government to Kane Company under those contracts, the amount Defendant Kane Company underpaid employee wages and benefits under these contracts, and the resulting financial loss to the Government; and (3) invoices submitted by Defendant Kane Company to the Government under some of these contracts. U.S. Compl. ¶ 15, Ex. B-C. See also Folliard, 722 F. Supp. 2d at 27 (holding that “while Rule 9(b)’s particularity requirement applies to the [contention] that the request was fraudulent,” Rule 12(b)(6)’s “general standards apply to the . . . existence of a request for payment”). b. Relator’s Remaining Fraud Claims Satisfy Rule 9(b)

Relator’s remaining FCA claims have also been pled with sufficient particularity under Rule 9(b).

28 (...continued) make any such suggestion. By contrast, as Relator has correctly pointed out, our district court has recognized that in FCA cases involving complex fraud schemes pleading by statistical sample is permitted under Rule 9(b). Harris, 275 F. Supp. 2d at 8. In the alternative, Defendants argue that the Government’s proffered contracts should not be treated as a statistical sample because “[t]he Government has not asserted that the contracts comprise a statistical sample of Defendants’ government contracts, nor can it, given that all the contracts date from the last three years (2003-2006) of the 1998-2006 time frame during which the alleged fraudulent scheme occurred.” Defs.’ Reply 8 n.10. The Government, however, clearly describes these contracts as constituting a “sample.” U.S. Compl. ¶ 15. Because this is an issue of fact, the Government’s allegation must be accepted as true in a Rule 12(b)(6) motion to dismiss.

First, with regard to the scheme to fraudulently bill for employee work hours which were not performed, Relator’s Complaint: (1) references two specific contracts for which Relator possesses personal knowledge of Kane Company’s fraudulent billing; (2) indicates that the scheme was discussed during monthly Kane Company executive-level meetings that occurred while Defendant was “working for Defendant Kane [Company];” (3) names specific Kane Company officials involved in the scheme; and (4) connects this scheme to demands for payment made to the Government. 3d. Am. Compl. ¶¶ 45- 46, 62.

Second, with regard to the scheme to fraudulently bill for fuel costs, Relator’s Complaint: (1) indicates that the scheme was discussed during the aforementioned Kane Company executive-level meetings with the same Kane Company officials; (2) states that the scheme occurred in 2002-2003 and 2005; (3) details the nature of the scheme; and (4) connects the fraudulent plan to demands for payment made to the Government. Id. ¶¶ 47-48, 65.

Third, with regard to the GSA best price scheme, Relator’s Complaint: (1) details the nature of the scheme; (2) clearly indicates that it was discussed in 2003 and 2004 at Kane Company executive-level meetings and continues to the present time; (3) names the specific Kane Company officials involved in the scheme; and (4) connects the scheme to demands for payment to the Government. Id. ¶¶ 9, 49-52,63-64, 104, 111-12.29 Finally, with regard to the Perara Group scheme, Relator’s Complaint: (1) details the nature of the scheme; (2) alleges the specific contracts that were the subject of the scheme; (3) clearly states that the scheme began after he left Kane Company and continues “until the present time;” and (4) connects the fraudulent scheme to demands for payment to the Government. Id. ¶¶ 10, 54, 55, 66, 104, 111-12. Although the Complaint does not specify the role Defendants John Kane, Ronald Meliker, and other Kane Company employees played in the fraudulent plan, given the other details provided, Defendants are not disadvantaged by Relator’s failure to include this information in his Complaint. Cf. Folliard, 722 F. Supp. 2d at 32.

In sum, Plaintiffs’ allegations provide sufficient detail to satisfy Rule 9(b)’s overriding purpose of guaranteeing Defendants “‘sufficient information to allow for preparation of a response.’”30 Martin-Baker, 389 F.3d at 1256 (quoting Cannon, 642 F.2d at 1385). “While significant details which will be necessary for plaintiff[s] to succeed on the merits of the case are indeed absent, these details are not necessary at this very preliminary stage of litigation.” Allen, 309 F. Supp. 2d at 47 (emphasis in original). Plaintiffs “must be allowed to fill in those details [through] the discovery process . . . .” Id. Contrary to Defendants’ claim, these allegations do not require Defendants to submit to overly burdensome discovery or allow Plaintiffs to conduct a “fishing expedition.” Defs.’ Reply 2,7. Rather, on the basis of Plaintiffs’ detailed allegations, the Court is confident that “[d]iscovery can be pointed and efficient.” Folliard, 722 F. Supp. 2d at 33.

For the foregoing reasons, the Court concludes that Plaintiffs’ fraud allegations meet the requirements of Rule 9(b). Accordingly, the Court denies Defendants’ Motion to Dismiss Plaintiffs’ FCA fraud claims on these grounds.

B. Relator’s Retaliation Claim Under the FCA Fails to State a Claim under Rule 12(b)(6)

Relator has accused Defendant Kane Company of violating Section 3730(h) of the FCA by retaliating against him in response to his filing of the instant qui tam action and participation in the Government’s investigation of this case. 3d. Am. Compl. ¶ 130. These alleged retaliatory acts include: (1) the filing of counterclaims in 2009 in this case against Relator that “had no basis in fact;” (2) the making of defamatory and disparaging statements in 2009 and 2010 about Relator to the press and other third parties; and (3) Defendant John Kane’s alleged impersonation of Relator and the posting of Relator’s phone number on the website, Craigslist.com. 3d. Am. Compl. ¶¶ 72-97, 100, 129-132.

In response to Relator’s claim, Defendants argue that these alleged retaliatory activities occurred well after Relator’s employment with Kane Company had ended and are, therefore, not cognizable under Section 3730(h). Defs.’ Mot. 12-13; Defs.’ Supp. Reply 2-5.

Under Section 3730(h) of the FCA, an employee who has been discriminated against for engaging in a protected activity may bring a civil action against her employer. The statute provides that:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

31 U.S.C. § 3730(h) (emphasis added).

While few courts have addressed whether Section 3730(h) applies to cases of post-employment retaliation, this Court has previously ruled on this issue. See U.S. ex rel. Head v. Kane Co., 668 F. Supp. 2d 146, 152 n.5 (D.D.C. 2009). In that opinion, the Court rejected the Government’s argument that Defendant Kane Company’s counterclaims against Relator should be dismissed as contrary to the “spirit” of Section 3730(h). Id. Specifically, the Court held that “[b]ecause Head was terminated prior to the filing of this Complaint, § 3730(h) does not apply to this action. ” Id. As the issue was not central to the arguments made by the parties at that time, the Court did not discuss it in any detail. However, having considered the parties’ recent round of briefing on this issue, the Court will affirm its earlier holding and elaborate on the reasons for reaching its conclusion.

In interpreting a statute, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146 (1992). In order to defeat application of this cannon of statutory construction, a party must “show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it.” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996).

In the Court’s earlier opinion, it emphasized the statutory language of Section 3730(h), particularly the phrase “in the terms and conditions of employment.” Head, 668 F. Supp. 2d at 152 n.5. The plain language of this phrase clearly establishes that Section 3730(h) applies only to the employment context and, therefore, cannot extend to claims for retaliatory action occurring solely after a plaintiff has been terminated from his job.^[31] Relator has not provided the Court with any persuasive authority that would support a contrary ruling.^[32]

31 (...continued) (S.D. Ohio June 5, 2009)(case involving FCA retaliation claim for unlawful termination); Machado v. Sanjurjo, 559 F. Supp. 2d 67 (D.P.R. 2008)(same); Nguyen v. City of Cleveland, 121 F. Supp. 2d 643 (N.D. Ohio 2000) (same); U.S. ex rel. Kent v. Aiello, 836 F. Supp. 720 (E.D. Cal. 1993) (same).

For the foregoing reasons, the Court holds that Section 3730(h) does not apply to retaliatory actions Defendant Kane Company allegedly took against Relator after his employment with the Company ended and which did not involve “the terms and conditions of [his] employment.”33 Accordingly, the Court will grant Defendants’ Motion and dismiss this claim for failure to state a cause of action under Rule 12(b)(6).

C. Supplemental Jurisdiction over Relator’s State Law Claims Is Proper

Defendants argue that the Court should decline to exercise supplemental jurisdiction over Relator’s state law claims as those claims “are not sufficiently related to the FCA claims.” Defs.’ Mot. ^[13] n.6; Defs.’ Reply 18-19 & n.19. Relator responds that supplemental jurisdiction is proper because of “the overlap in facts, witnesses, and parties.” Rel. Opp’n 2.

Although Relator’s Complaint does not specify the basis for the Court’s jurisdiction over these claims, it is clear that 28 U.S.C. § 1367 provides such jurisdiction. Under that provision, “in

32 (...continued) its officials while he was employed at the Company.

any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”

In order for a federal and state law claim to form part of the “same case of controversy,” the “claims must derive from a common nucleus of operative facts.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130 (1966). Claims may be said to “derive from a common nucleus of operative facts” where plaintiff would be expected to try them all in one judicial proceeding, such as when they involve common issues of proof and the same witnesses. Id.; Reuber v. United States, 750 F.2d 1039, 1048 (D.C. Cir. 1984), overruled on other grounds by Kauffman v. Anglo-Am. Sch. of Sofia, 28 F.3d 1223 (D.C. Cir. 1994). In applying this standard, courts should be guided by considerations of judicial economy as well as convenience and fairness to the parties. Reuber, 750 F.2d at 1048.

In this case, Relator’s state law claims derive, in large part, from allegations that Defendants took various unlawful actions against Relator arising from his decision to bring the instant qui tam action. 3d. Am. Compl. ¶¶ 72-97, 100, Counts 5, 7-

12. Relator’s FCA and state law claims, therefore, do arise from a common nucleus of facts and are properly tried in the same case. Accordingly, principles of judicial economy and fairness to the parties mandate the exercise of the Court’s supplemental jurisdiction.

For the foregoing reasons, the Court denies Defendants’ Motion to Dismiss Relator’s state law claims for lack of supplemental jurisdiction.

IV. Conclusion

For all the reasons stated herein, Defendants’ Motion to Dismiss is granted in part and denied in part. Specifically, pursuant to Rule 12(b)(6), the Court grants Defendants’ Motion to Dismiss Relator’s FCA retaliation claim as well as Relator’s claim that Defendants Kane Company, John Kane, and Ronald Meliker conspired together to violate the FCA. The Court denies, pursuant to both Rule 9(a) and 12(b)(6), Defendants’ Motion to Dismiss Plaintiffs’ remaining FCA fraud claims and Relator’s state law claims.

An Order will accompany this Memorandum Opinion.

July 25, 2011 /s/ Gladys Kessler United States District Judge Copies via ECF to all counsel of record