    United States, 973 F.2d 1548, 1550–51 (Fed. Cir. 1992) (quoting Restatement (Second) of

    Contracts § 241 cmt. A (1981)). Making this determination “depends on the nature and effect of

    the violation in light of how the particular contract was viewed, bargained for, entered into, and

    performed by the parties.” Id. at 1551.

           Although DynCorp’s pleading is far from convincing, its failure to cite other “cases

    where a prior material breach of contract was found to be a defense to claims under the FCA”

    (Reply Mot. at 10), does not mean that the Court should strike this defense at this early stage.

    Thus, the Court denies the government’s motion to strike the prior breach of contract defense, but

    it grants the motion to strike the inequitable conduct or unclean hands defense.

                                              CONCLUSION

           The government’s motion to strike is granted in part and denied in part. The motion is

    granted as to the fifth and sixth defenses, and granted in part as to the seventh and ninth defenses

    and it is denied as to laches if asserted as to prejudgment interest (seventh defense) and the

    breach of contract defense (ninth defense).




                                                          /s/ Ellen Segal Huvelle    
                                                          ELLEN SEGAL HUVELLE
                                                          United States District Judge
Date:      October 4, 2017




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