                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,
ex rel. ROBERT R. PURCELL,

              Plaintiffs,

        v.                                    Civil Action No. 98-2088 (GK)

MWI CORPORATION,

              Defendant.


                                 MEMORANDUM OPINION

        On November 25, 2013, after a nine-day trial,                      a jury found

Defendant      MWI     Corporation      ("Defendant"    or     "MWI")       liable   for

violations       of      the    False    Claims   Act        ("FCA")   I    31   u.s.c.
§    3729(a) (1),     (2).   The matter is now before the Court on MWI's

Motion for Judgment as a Matter of Law [Dkt. No. 443]                         and MWI's

Renewed Motion for Judgment as a Matter of Law                     [Dkt. No.      478].

Upon consideration of the Motions, Oppositions, Replies, and the

entire record herein,            and for the reasons set forth below,                the

Court concludes that Defendant's Motion for Judgment as a Matter

of    Law    shall     be    denied   and   Defendant's      Renewed        Motion   for

Judgment as a Matter of Law shall be denied.
                   1
I .   BACKGROUND

      In   1992,       MWI,    a     Florida   corporation,        arranged     to     sell

irrigation pumps and other equipment to seven Nigerian states.

The total sale price was $82.2 million.

      To   finance      these      sales,    MWI   and the      Federal     Republic of

Nigeria    ("Nigeria")         sought    and    received    eight     loans    from     the

Export-Import Bank of the United States                    ("Ex-Im"), an agency of

the   United   States         that    finances     and   facilitates        transactions

between U.S. exporters and international buyers. Ex-Im agreed to

finance the deal and loan Nigeria $74.3 million. Nigeria agreed

to pay back the $74.3 million, as well as interest and fees, and

the   individual Nigerian states agreed to pay the remainder of

the $82.2 million price.

      Before   Ex-Im          would     approve    the     loans     to     Nigeria,     it

required    MWI        to     submit     a     "Letter     of      Credit     Supplier's

Certificate" for each of the eight loans. On each of those eight

Letter of Credit Supplier's Certificates,                    MWI attested that it

had paid only "regular commissions" in connection with the pump

sales. See Pls.' Ex. 283.

1
  For purposes of ruling on a motion for judgment as a matter of
law, the evidence is examined in the light most favorable to the
nonmoving party. Kakeh v. United Planning Org., Inc., 655 F.
Supp. 2d 107, 115 (D.D.C. 2009) (citation omitted). Accordingly,
unless otherwise noted, the facts that follow are taken from the
evidence presented at the nine-day trial held in November 2013
and from Plaintiffs' Oppositions.
                                             -2-
         After Ex-Im approved the loans, but before it disbursed any

funds,      it     required       MWI     to      submit     a    "Disbursement          Supplier's

Certificate."            MWI      attested         on      50     Disbursement           Supplier's

Certificates           that      it   had      paid      only    "regular        commissions"       in

connection with the pump sales.                          See Pls.'        Ex.    284.    Thus,     MWI

submitted eight Letter of Credit Supplier's Certificates and 50

Disbursement Supplier's Certificates to Ex-Im. 2

         In 1998, Relator Robert Purcell, a former employee of MWI,

filed      this    action under             the    FCA.    Complaint        [Dkt.       No.   1]    He

alleged that MWI paid commissions in excess of 30 percent to its

long-time          Nigerian           sales       agent,         Alhaji         Mohammed      Indimi

    ("Irtdimi").   Id.     ~~    35-37.     Purcell alleged that those commission

payments were not                "regular"        and should have been disclosed on

all of the Supplier's Certificates that MWI submitted to Ex-Im.

Id.

         In April of 2002,              the United States decided to intervene,

and      filed     a     complaint        which       then       governed       the     proceedings

("Complaint")            [Dkt.    No.     18]      Based        in part     on the       amount     of

commissions paid to Indimi,                     which at the time was estimated to




2
  As this Court has already noted, MWI did not challenge at trial
the Government's evidence or testimony regarding 58 total
Supplier's Certificates. United States ex rel. Purcell v. MWI
Corp.,    F. Supp. 2d _, 2014 WL 521524, at *1 n.1 (D.D.C. Feb.
10, 2014) ("Judgment Opinion")
                                                   -3-
be approximately $28 million dollars, 3 the Complaint alleged two

violations         of    the   FCA    (Counts    I    and     II)     and   two      common      law

claims for unjust enrichment and payment by mistake                                  (Counts III

and IV) .

        The    case      was    litigated       for   several         years     before      Judge

Ricardo       M.    Urbina.      Judge     Urbina      made         several     findings         and

conclusions         that       bind     this    Court,        including        two      opinions

granting in part and denying in part various Motions for Summary

Judgment.      See United States ex rel.                    Purcell v.         MWI     Corp. ,    et

al.,    520 F.      Supp.      2d 158    (D.D.C.      2007)     ("First MSJ Opinion");

United States ex rel.                Purcell v. MWI Corp.,             824 F. Supp.         2d 12

(D.D.C. 2011)           ("Second MSJ Opinion").

        After Judge Urbina's retirement, the case was reassigned to

Judge    Colleen         Kollar-Kotelly,        and    then     to     this     Court.      After

resolving      many pre-trial            motions,     the     case      went      to    trial     on

November 6, 2013.




3
  At trial, the Government argued that MWI had paid $25 million
dollars in commissions to Indimi, not $28 million. See, e.g.,
Pls.' Opening St., Trial Tr. Nov. 8, 2013, A.M. Session at 25:9-
12 (telling jury it needed "to decide whether MWI knew or should
have known that the $25 million payment to Mr. Indimi was
irregular and that it should have been disclosed"); Pls.'
Closing Arg., Trial Tr. Nov. 21, 2013, A.M. Session at 50:20-22
("$25 million in Ex-Im funds went into the bank account of MWI's
Nigerian agent Alhaji Indimi."); id. at 76:10-12 (suggesting
that measure of amounts be the $25 million that United States
"unknowingly paid to Mr. Indimi").
                                               -4-
        At     the        close        of     the    Government's                 case,     MWI      moved      for

judgment as a matter of law under Rule 50(a). Trial Tr. Nov. 19,

2013,        P.M.        Session        at     79:8-80:7.          "Consistent              with       the     best

practices           governing           pre-verdict           motions,             the     Court        reserved

ruling" on MWI's motion. See Hancock v. Washington Hosp. Ctr.,

F.    Supp.     2d               2014 WL 60288,               at       *1    (D.D.C.        2014)       (quoting

Moore's        Federal           Practice           Civil     §    50.33).          The     Court        ordered

Defendant           to    file     a    written brief              in       support        of     its    motion.

Trial Tr. Nov. 19, 2013, P.M. Session at 80:7-8.

        On November 22, 2013, the case went to the jury on Counts I

and II of the Complaint. On November 25, 2013, the jury returned

a verdict for Plaintiffs on both Counts I and II [Dkt. No. 453].

The     Government           then            dismissed        Counts          III         and     IV     of     the

Complaint, its common law claims, with prejudice. Trial Tr. Nov.

25, 2013, A.M. Session at 22:18-20.

        On    December           9,     2013,        Plaintiffs             filed     an     Opposition           to

Defendant's Motion for Judgment                              as    a    Matter of Law                  [Dkt.    No.

460],    and on December 19,                        2013,    Defendant filed a Reply                           [Dkt.

No. 466]

        On    February           12,        2014,    Judgment          was        entered       in      favor     of

Plaintiffs           [Dkt.       No.        473].     On     March          12,     2014,       MWI     filed      a

Renewed Motion for Judgment as a Matter of Law ("Renewed Mot.")

[Dkt. No. 478]. On April 9, 2014, Plaintiffs filed an Opposition

                                                       -5-
[Dkt.    No.        483],      and on April 25,                   2014,         Defendant filed a Reply

("Renewed Reply")                  [Dkt. No. 484].

II.     STANDARD OF REVIEW

        Under Federal Rule of Civil Procedure 50 (a),                                              "[i] f     a party

has    been fully heard on an issue                                during a           jury trial              and the

court        finds       that        a    reasonable         jury would               not     have        a   legally

sufficient           evidentiary                basis       to     find         for   the     party           on     that

issue,"        then       a    court          may     "grant       a       motion       for    judgment            as    a

matter       of     law       against           the    party on             a   claim or        defense            that,

under    the        controlling law,                   can be maintained or defeated only

with     a     favorable                 finding      on     that          issue."       Fed.        R.       Civ.      P.

50 (a) (1) (B) .

        "If       the     court          does    not       grant       a    motion      for     judgment           as    a

matter of law made under Rule 50(a),                                       the court is considered to

have    submit ted            ~the       act ion      to    the    jury subject               to     the       court ' s

later deciding the legal questions raised by the motion."                                                            Fed.

R.    Civ.     P.       50(b).           If   the     moving       party         renews       its     motion          for

judgment as a matter of law following the discharge of the jury,

the    Court        may       consider the                motion and,            if   appropriate,              direct

the    entry        of        judgment          as    a    matter          of    law.       Fed.     R.       Civ.      P.

50 (b) (3).

        "The legal standard for granting a motion for judgment as a

matter       of     law       is     the      same        whether          it   is    rendered        during          the

                                                           -6-
trial      under Rule             50 (a),    or after the            jury has been discharged

under Rule 50 (b) . "               Beyene v.          Hilton Hotels Corp.,               958 F.      Supp.

2d 247,         249       (D.D.C.       2013).        A court    should grant            judgment as a

matter         of    law    only        "when a        party has       been      fully    heard on       an

issue,         and there is no legally sufficient evidentiary basis for

a reasonable jury to find for that party on that issue." Reeves

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000).

         Although           the    court         should       examine      all     evidence      in     the

record,         "the court must draw all reasonable inferences in favor

of       the    nonmoving              party,     and     it     may      not     make       credibility

determinations              or     weigh        the    evidence."         Id.    at   149.     Moreover,

courts "do not                          lightly disturb a jury verdict. Judgment as

a    matter         of    law     is    appropriate           only   if    the    evidence       and    all

reasonable           inferences          that     can be        drawn     therefrom are          so    one-

sided      that          reasonable       men     and women          could not        have     reached    a

verdict in plaintiff's favor." Nelson v.                                  Dist.    of Columbia,         953

F. Supp. 2d 128, 130 (D.D.C. 2013).

         As a       post-trial Rule 50(b)                 motion is limited to a                 renewal

of   a    Rule       50 (a)       motion    for        judgment      as   a     matter    of    law,    the

post-trial           motion must            be    limited       to    those      grounds       that    were

specifically raised in the prior Rule 50(a)                                     motion.    Beyene,      958

F. Supp. 2d at 249                 (citation omitted).



                                                        -7-
III. ANALYSIS

      The    Government    alleged      two violations     of    the    FCA.   First,

the   Government    alleged      that   MWI   knowingly      presented     false   or

fraudulent     claims    for payment     to the United States Government.

Complaint ~~ 46-48        (citing 31 U.S.C.      §   3729 (a) (1)).     Second,    the

Government     alleged    that    MWI    knowingly    made      false   records     or

false statements to get the Government to pay or approve false

or fraudulent claims for payment.             Complaint ~~ 49-51         (citing 31

U.S.C.   §   3729(a) (2)) . 4 The jury found for the Government on both

Counts. Verdict at 1-2        [Dkt. No. 453].


4
   On May 20, 2009, Congress enacted the Fraud Enforcement and
Recovery Act of 2 009 ( "FERA'') . Among other things, Congress
replaced the language of Section 3729(a) (2) with a new section
3729 (a) (1) (B). See FERA, Pub. L. No. 111-21, § 4 (a) (1), 123
Stat. 1617 (May 20, 2009). The amendments were made retroactive
to all "claims" under the False Claims Act "that are pending on
or after" June ·7, 2008. Id. § 4 (f) . Although our Court of
Appeals has not yet decided this issue, United States v. Sci.
Applications Int'l Corp., 626 F.3d 1257, 1266 (D.C. Cir. 2010),
 (assuming without deciding that lower court determination that
statute did not apply retroactively was correct) , the district
courts in this Circuit have        found that  the retroactivity
presumption applies to claims, but not cases, pending in June
2008. See, e.g., United States ex rel. Barko v. Halliburton Co.,
952 F.     Supp.  2d 108,   118 (D.D.C.  2013)  ("The retroactive
provisions apply, then, to fraudulent requests for money pending
on or after that date."); United States v. First Choice Armor &
Equip., Inc., 808 F. Supp. 2d 68, 76-77 (D.D.C. 2011) ("The word
'claims,' as it applies in the relevant provision, refers to 'a
defendant's request for payment' and not to 'civil actions for
FCA violations.'" (quotation and citation omitted)). During the
trial, this Court held in accordance with its sister courts that
the pre-amendment version of the statute would apply and
instructed the jury accordingly. Trial Tr. Nov. 8, 2013, A.M.
Session at 127:10-18.
                                -8-
        MWI raises several arguments that the Court will address in

turn.    However,         many of MWI' s               arguments           ask the         Court    to    "make

credibility determinations or weigh the evidence,"                                             which it      is

not    permitted to            do.    Reeves,          530        U.S.     at    149;      Estate of Mark

Parsons v. Palestinian Auth.,                      651 F.3d 118, 124                    (D.C. Cir. 2011)

("Sorting       out                    contradictions                    [and]        deciding      how   much

weight to give evidence that supports or undermines                                             [a party] 's

case            . are prototypical                jury functions                 that      courts may not

commandeer.") .           Likewise,         the    Court           will     not       revisit      its    prior

legal        conclusions,            which    were               unaffected           by     the     evidence

introduced          at    trial.      Cf.    Feld           v.     Feld,        688    F.3d    779,      782-83

(D.C.    Cir.    2012)        (holding that Rule 50 motions are not required

to preserve purely legal claims for appeal).

        A.      There Was Sufficient Evidence to Support the Jury's
                Finding that the 58 Supplier's Certificates Were
                "Claims"

        MWI argues that Plaintiffs failed to introduce any evidence

that    the     Supplier's           Certificates                were     "claims       for    payment"      as

defined by the FCA.                 Renewed Mot.             at 45.        The FCA defines "claim"

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,       or if         the Government will                      reimburse        such contractor,

                                                       -9-
grantee,       or       other    recipient         for    any    portion    of        the       money    or

property which is requested or demanded."                             31 U.S.C.             §    3729(c).

"A submission need not be an actual invoice to be a                                         'claim'      or

'statement'          under the Act.'"              United States ex rel.                   Schwedt v.

Planning Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995).

        Earlier in this litigation, MWI argued that, as a matter of

law,     "submissions            made   in     connection         with     efforts          to     obtain

Government         loans       cannot   be     treated      as    false     claims              under   the

FCA."    Def.       MWI       Corp.'s Mot.         for    Clarification at             6        [Dkt.   No.

230].     Judge         Urbina     rejected         that    argument,       and        granted          the

Government's            Motion    for    Summary         Judgment     on    the       issue        of   the

existence          of    claim    and    the       issue    of    presentment.              First       MSJ

Opinion, 520 F. Supp. 2d at 174 n.6; see also Order of March 20,

2008    (granting Plaintiff's Motion for                         Partial        Summary Judgment

on     the     FCA       elements       of     "the       existence        of     a     claim"          and

"presentment of a claim to the government")                           [Dkt. No. 2 3 3]

        Indeed,         MWI    acknowledged prior to trial                 that Judge Urbina

had resolved the issue of whether or not a                            "claim" existed. Def.

MWI Corp.'s Mot.               for Clarification at 6              (" [T] he     'claim'          element

under        the     Government's            FCA    claims       no   longer           remains          for

resolution         at     trial.") .    Accordingly,            the   Court       instructed            the

jury that the Supplier's Certificates in this case were "claims"

under the False Claims Act and that the jury could assume that

                                                   -10-
"each of       those documents          is   a   'claim'     for payment."             Trial   Tr.

Nov.    21,     2013,   A.M.    Session at        35:16-19.         Thus,   Plaintiffs          did

not    have     to   introduce        evidence    as    to    the    "claim"         element     at

trial. 5

       B.      There Was Sufficient Evidence to Support                              the     Jury's
               Finding that MWI's Claims Were False

       Plaintiffs'       theory of falsity was that MWI's certifications

on    its     Supplier's      Certificates       were   false       because       it    attested

that    it paid only "regular commissions."                      Complaint       ~     15;   Trial

Tr.    Nov.    21,    2013,    A.M.    Session at       36:10-17.       Consequently,            in

order to ascertain whether the claims were false,                                the jury had

to    evaluate       whether    the     commissions        MWI   paid       to   Indimi        were

"regular."

       Because the jury found that the 58 Supplier's Certificates

were     false       claims,     it     necessarily          found     that       the        Indimi

commissions          were      not     "regular."        Sufficient           evidence          was

introduced to support the jury's finding.
5
  The jury was required to identify the number of false claims
and/or false records or false statements, if it found liability.
Trial Tr. Nov. 21, 2013, A.M. Session at 35:16-19; see also
United States ex rel. Miller v. Bill Harbert Intern. Const. ,
Inc., Case No. 95-1231, 2007 WL 851868, at *2 (D.D.C. March 14,
2007)   ("The jury's job in this case will be to determine the
number of violations and fix the amount of actual damages, if
any.").    Plaintiffs  introduced evidence  that  there were  58
Supplier's Certificates, and the jury found accordingly. Pls.'
Ex. 283 (8 Letter of Credit Supplier's Certificates); Pls.' Ex.
284 (50 Disbursement Supplier's Certificates); Verdict at 1-2
[Dkt. No. 453]     (identifying 58 false "claims" and 58 "false
records and false statements").
                                -11-
        The strongest evidence that the commissions paid to Indimi

were not regular was the sheer amount of money paid to Indimi.

Between 1992 and 1994,                 the commissions paid to Indimi dwarfed

those paid to other MWI agents. Def.'s Ex.                    500    ($26,070,181 was

paid     in   8   commissions          to   Indimi;   $1,744,537     was   paid   in    48

commissions       to     all   other agents) .        Between 1980     and 1995,       MWI

paid $51,986,394 in 23 commissions to Indimi.                       Id. The other 130

commissions to MWI's other sales agents add up to approximately

$3.6 million dollars combined. Id.

        Of the largest 21 commissions paid between 1980 and 1995,

Indimi received 19 of them. Id. His largest commission, in April

of 1985, was $12,750,1'49               (almost four times as much as MWI paid

all other sales agents over 15 years). Id.

        MWI argues that the total dollar amount of the commissions

is misleading.         Renewed Mot.         at 2i. However,    in addition to the

high dollar amount Indimi received,                   the percentage of the total

sales that he received in commissions was far higher than the

percentages given to other MWI sales agents. Eighteen of the 153

commissions MWI paid between 1980 and 1995 were above 30% of the

sales price, and 15 of those went to Indimi. Def.'s Ex. 500.

        MWI emphasizes that three other commission percentages were

higher    than    3 0%    of    th,e   sales price,     Renewed Mot.       at   11,    but

those     commissions          were     comparatively    small.      Def.'s     Ex.    500

                                             -12-
(commissions of $26,624                   (Feb. 2, 1990), $23,387 (July 22, 1980),

and $16,839       (August 13,              1982)).       Importantly,            as Rita Rodriguez

testified,       commission percentages often have to be higher when

the total sale amount is lower. Test. of Rita Rodriguez,                                          Trial

Tr. Nov. 14, 2013, A.M. Session at 89:24-90:6; see also Test. of

Thomas      Roegiers,         Nov.        19,         2013,     A.M.       Session    at    111:6-10

(testifying       that        "there's           no     sense       in"    comparing       commission

amounts     on    separate          sales        "without           also   comparing       the     sales

value") .

        In addition,          the average percentage of sales price paid to

MWI     sales    agents        in     commissions              between      1992     and    1994     was

approximately          10%,     but        Indimi's           average      percentage       of     sales

price     was     33.9%.        Def. 's          Ex.         500.    Similarly,       the        average

percentage of sales price paid to MWI sales agents between 1980

and 1995 was 14.68%,                 but    Indimi' s          average percentage of sales

price was 33.71%. Id.

        Thus,    the    evidence           supports           the    jury's      finding    that     the

commissions were "irregular" because the Indimi commissions were

generally much higher than the commissions paid to MWI's other

agents, both in total amount and in percentage of sales price.

      Moreover,        the      evidence              that     Indimi      was    paid     commission

percentages       between           26%     to    37%         was    particularly        significant

because multiple          Ex-Im employees                     testified that         they expected

                                                      -13-
commissions          to be    "in the          lower than 5 to around 10 percent

area."    Hess Dep.          60:18-22,         Sept.    22,    2004; 6     see also Test.         of

Rita Rodriguez, Trial Tr. Nov. 14, 2013, A.M. Session at 75:15-

16,   76:14-19       (testifying that 5% was standard, and that anything

over 8% or 10% would be unlikely to be approved) . This statement

correlates with the testimony given by MWI employee Juan Ponce

that Ex-Im expected its commissions to be no more than 5%. Test.

of Juan Ponce, Trial Tr. Nov. 13, 2013, A.M. Session at 22:1-10.

        Ex-Im employees also testified that commissions of either

the percentage of sales price or the total dollar amount paid to

Indimi were unquestionably "irregular" and far outside the scope

of    anything       they     had    ever       seen.    See,        e.g. ,     Test.   of      David

Chavern,       Trial    Tr.    Nov.       12,    2013,        A.M.    Session      at   83:10-18,

88:24-89:9       (testifying that if a commission of either 24% or 35%

had     been     disclosed,         the     bank       would       not    have    approved        the

disbursement);         Test.        of    Leilani       Lansing,         Trial    Tr.    Nov.     12,

2013,     P.M.       Session    at        48:2-3,       51:7-16,         51:20-21,      52:23-25,

84:13-23       (referring       to       the     total     amount        paid     to    Indimi     in

commissions on all of the sales as "huge compared to the amount

of the sale, and also the percentage," "absurd," an "outrageous

amount,"       and    "far beyond          the     range      of     anything     reasonable") ;

6
  An edited version of Hess's Sept. 22, 2004, deposition was
played for the jury on Nov. 8, 2013. See Trial Tr. Nov. 8, 2013,
P.M. Session at 10:14-15, 10:23-24.
                                                 -14-
Test.    of Rita Rodriguez,         Trial Tr.       Nov.     14,    2013,   A.M.      Session

at     29:21-37:21      (testifying        that     even     the     lowest        commission

percentage,      24%,   would be      found       irregular because           she did not

"know of      any industry in any country that                     regularly pays           that

kind    of    commission     legitimately"        and    noting      that     it    would be

"astounding"      and    "unbelievable"       that      anyone      would suggest           that

the Government should finance               such a      transaction) .        In sum,           the

Government       submitted      ample       evidence       supporting         the      jury's

finding that the commissions paid to Indimi were not "regular,"
                                                                                       7
and, thus, MWI's certifications to the contrary were false.

        MWI   raises    several     arguments      regarding        the   jury's      finding

of    falsity,   but    none   of    the    arguments      meaningfully challenges

the    sufficiency      of   the    evidence.       First,     MWI    argues        that        the

language of      the    Certificates was          so vague         and ambiguous           as    to

negate a finding of falsity.               In 2007, Judge Urbina rejected this

argument.      First MSJ Opinion,          520 F.    Supp.     2d at      176-77      ("Under
7
  MWI emphasizes that William Brickhill and other Ex-Im employees
indicated that certain factors,     including difficult country
conditions, the exclusivity of the agent, or the longevity of
the agent's tenure,    may have been relevant      to whether a
commission was "regular." Renewed Mot. at 19-20; Renewed Reply
at 4, 9-10. MWI neglects to note, however, that these witnesses
testified that these factors would have been relevant to Ex-Im's
analysis of whether or not to continue with the transaction
after an irregular commission was disclosed, not whether the
commission should have been disclosed in the first instance.
See, e.g., Test. of David Chavern, Trial Tr. Nov. 12, 2013, A.M.
Session at 116:24-118:17; id. Trial Tr. Nov. 12, 2013 P.M.
Session at 19:14-21; Test. of Leilani Lansing, Trial Tr. Nov.
12, 2013, P.M. Session at 75:12-78:19.
                              -15-
these     standards,           the       court        concludes      the     regulation         here       is

sufficiently clear to put                           exporters on notice of                the type of

commissions           required           to    be     disclosed.")          This    conclusion was

included in ·the instructions to the jury. See Trial Tr. Nov. 21,

2013,     A.M.        Session at              36:22-27      ("For purposes          of    determining

falsity,     you may not consider whether MWI knew this definition

or     whether        MWI     had        a    different          interpretation          of    the       term

    'regular commission'             or whether             the    term     'regular commission'

was vague or ambiguous.")

        Despite        being       specifically             foreclosed       from    pursuing            this

theory,      MWI       now     raises           the       same    argument,        couched         in     the

language         of     "objective              standards."         Renewed        Mot.       at        4-10.

However, the basis of its theory is the same - that the language

of     the   Certificates                    provides       so    little     guidance          that        no

commission could be said to be "regular" or "irregular." Id. at

4 (arguing that Government failed to show the commissions "could

be     objectively adjudged to be                         regular or        irregular under the
                                     8
circumstances           here")               This     legal      argument    has     been       rejected

repeatedly        by        this     Court          and    MWI    has     failed     to       raise       any

"intervening           change        of        controlling         law[]     or     new       evidence,"
8
  The Court notes that MWI did not raise its "objective standard"
argument in its Rule 50(a) Motion, and, consequently, even if it
had merit, the argument was waived. Beyene, 958 F. Supp. 2d at
249 (citation omitted); see also Whelan v. Abell, 48 F.3d 1247,
1251 (D.C. Cir. 1995) (movant who omits theory from Rule 50 (a)
motion waives theory as basis for Rule 50(b) motion).
                               -16-
Alliance for Cannabis Therapeutics v. D.E.A., 15 F.3d 1131, 1134

(D.C.     Cir.   1994),      that    would      justify      revisiting      the     Court's

conclusion. Therefore,            the Court will simply reiterate that the

language of the Supplier's Certificate was not so ambiguous as

to prevent a finding of falsity.

        Second, MWI argues that the Government failed to introduce

evidence of        the   relevant     "industry standard."            Renewed Mot.         at

14-17.    In 2007,       Judge Urbina found that "Ex-Im's interpretation

of      'regular     commissions'          as        referring      to    industry-wide

benchmarks is not only 'consistent' with the underlying term but

is     finely    attuned     to     its   context          and   purpose."        First   MSJ

Opinion,      520 F. Supp. 2d at 177. Thus, the Court instructed the

jury     that,      "[t]he     term       'regular         commissions'       refers       to

commissions normally and typically paid by the exporter and its

competitors in the same industry." Trial Tr. Nov. 21, 2013, A.M.

Session at 36:20-22.

        MWI   now argues      that    because        the    instruction      to    the    jury

defined       regular      commissions          as    "commissions        normally        and

typically paid by the exporter and its competitors in the same

industry," id.       (emphasis added),           the Government was required to

introduce specific evidence of commissions paid both by MWI and

by MWI's industry competitors to meet its burden on the element

of falsity. Revised Mem. at 14-17.

                                          -17-
        The Court disagrees. The intent of this instruction was to

provide     some     guidance     to     the     jury    as   to    the    scope      of        the

"regular commissions"            inquiry,       not to establish an evidentiary

requirement.        At   no    point    has     this     Court     ever    held    that         the

Government      could      not    prove        falsity    unless      it     proved        by     a

preponderance of the evidence exactly what the industry standard

was for commission payments on the sale of pumps in Nigeria. 9

        Moreover,        the     objection        is      unavailing         because            the

Government submitted evidence to the jury to enable them to make

reasonable      inferences         about        the      commissions       normally             and

typically paid in the industry.                  See Beyene,        958 F.    Supp.      2d at

249     (noting that court must draw all                   reasonable inferences in

favor of non-moving party). Namely, evidence was submitted that,

in markets where there was competition,                       MWI' s commissions were

limited to "10 percent or less." Test. of Juan Ponce, Trial Tr.

Nov. 13, 2013, A.M. Session at 29:23-30:6; see also id. at 31:9-

18    (in markets with competition,              "[s]ometimes commissions cannot

be any more than 5 percent") .                  This testimony corresponds with

MWI's     own      commissions         data.     See,      e.g.,      Def. 's      Ex.          500

(commissions percentages               in Europe between 1980              and 1995 were

9
  Indeed, Judge Urbina noted in an earlier opinion, "the precise
metes and bounds of the 'relevant industry' cannot be defined
with mechanical precision." Second MSJ Opinion, 824 F. Supp. 2d
at 27 n.6 (rejecting MWI's argument that difficulty of defining
relevant industry insulated them from liability) .
                               -18-
5%-10%; average commission in Central American between 1992 and

1994     was     8%) .   Evidence       was   presented        that   the    pump     industry

standard was to keep prices low by keeping commissions low.

        Ponce's testimony also explained why the Government did not

have     specific        evidence        about       commission       payments       paid    by

competitors selling irrigation pumps in Nigeria - there were no

such competitors. Test. of Juan Ponce, Trial Tr. Nov. 13, 2013,

A.M.    Session at 30:11-17              ("The Hydraflo pump was a proprietary

equipment, and even though we had some competition later on, but

we     were    basically        alone    in    the       market    with    this     particular

product.");        see also       id.    at   29:23-30:6,          31:1-7.   Because there

were no direct           competitors,         it would have been impossible for

the      Government        to     submit         specific         evidence        about     what

competitors paid in commissions for similar products.

        In sum,      the Government submitted sufficient evidence as to

how      the      industry       generally           functioned       to     constitute         a

"legally sufficient evidentiary basis for a reasonable jury to

find" that Indimi's commissions were irregular compared to those

generally paid in the industry. Reeves, 530 U.S. at 149.

        Third,     MWI   argues     that      the    jury could not          find    that    the

Indimi        commissions       were    irregular         as   compared      to     its   other

commissions because all of its commissions were calculated using

the    same     formula.     Renewed Mot .          at    17-23;    Renewed Reply at          7 1.

                                              -19-
Def.'s Ex. 533. This formula set a commission of 10% of the base

price. Def.'s Ex. 533. The agent would then also receive half of

any sales amount              received over the base price.                      Id. ;    see also

Test.    of Cornelius Lang,               Trial Tr. Nov.          14,    2013,     P.M.    Session

at 47:20-48:12.

        MWI insists thc;tt its "neutral" application of this formula

to all        sales    is nonrebuttable evidence of regularity.                            Revised

Mem.    at 11-12.       However,       the Government submitted evidence that

explained how the lack of competition in Nigeria affected the

sales     price       and        application       of     the    commissions           formula     in

important ways.

        Because       ther~      were no competitors selling similar pumps in

Nigeria, there were no market forces to ensure that MWI's prices

or commissions were not inflated. Ponce testified that the lack

of     competition          in    Nigeria     permitted          MWI     "to     put     the     high

commissions into the price of the pumps." Test.                                of Juan Ponce,

Trial Tr. Nov.          13,      2013, A.M.     Session at 16:9-10; see also id.

at 83:18-20       ("[T]he fact that we had no competition, so we were

able not only to pay Indimi the high commissions,                                   but also to

have very high profits for the company.").

        The    evidence          showed     that        Indimi    sold    his      products        to

Nigeria at between 168% of the base price and 296% of the base

price. See Def.'s Ex. 533                 (setting forth formula for calculation

                                               -20-
of commissions); Def. 's Ex.                     500        (listing commissions and sales

prices).       On average,           Indimi's sales were close to 250% of the

base     price.        Id.     In     comparison,            sales    of     other      salespeople

between 1992 and 1994 were an average of 102% of the base price.

Id.

        Consequently,           the fact that Indimi's high commissions were

calculated according to a formula does not make the commissions

"regular" because the formula was applied to irregular, inflated

prices.    Although companies are                       free    to charge whatever prices

they can get in the private market,                             the Ex-Im' s purpose is to

finance        sales     made       on     a   commercially-based            basis.      Hess    Dep.

100:2-10,        Sept.        22,     2004.      As     the    Ex-Im       witnesses      testified

consistently,           the        purpose       of     requiring      disclosures         of     high

commissions        is,        at    least       in    part,     to    assure     that     the     Bank

invests in projects where the "products are priced correctly."

Test. of David Chavern, Trial Tr. Nov. 12, 2013, A.M. Session at

109:5-14;       see also id.             at 66:1-6          (stating that Ex-Im would not

want    situation where               "the amount            of lending that the bank is

doing     is     in    excess         of       what's       needed    to     actually      buy       the

product");       Test.        of Leilani Lansing,               Trial Tr.        Nov.    12,     2013,

P.M.     Session         at        52:4-13       (noting       that    disclosure         of      high

commission       rate         "would       raise      in     my mind       the   question       as    to

whether we approved the loan for the wrong amount")

                                                     -21-
        In    sum,    the       jury had       a    sufficient       evidentiary basis              to

reject       MWI's     argument         that       its    application         of     a   consistent

formula        to      all       its         commissions          made        these       irregular

transactions,             and     the        irregularly         high         commissions         that

accompanied          them,      "regular"          for    purposes       of    procuring      Ex-Im

financing.

        Fourth,       MWI       argues       that        the    Indimi        commissions         were

"regular" because they were consistent with the commissions it

had been paying to Indimi for years.                             Revised Mem.            at 12.    MWI

argued this theory to the jury, and the jury rejected it. It was

certainly not unreasonable for the jury to conclude that MWI' s

exorbitant          commissions         to     Indimi      were     not       "regular"      simply

because       it    had    paid him similarly exorbitant                        commissions        for

years.       There is simply no basis for the Court to overturn this

finding. See Estate of Mark Parsons, 651 F.3d at 124.

        Finally,      MWI       argues       that    the       Government          inappropriately

argued       that     the       many    unconventional            ways        in    which    Indimi

received his commissions was evidence of irregularity.                                      Renewed

Reply at 13. 1 ° Contrary to MWI' s                      insistence that the Government

1
    °
   For example, MWI and its employees paid Indimi's personal
expenses and then deducted the payments from future commissions
at no cost; paid for Indimi's lawn, pool, cable, cleaning,
phone,  and water services; paid Indimi's $43,000 American
Express bill; made numerous cash advances to Indimi; gave Indimi
large advances on his commissions; provided Indimi with no-
interest loans; helped Indimi sell his home; reimbursed Indimi's
                              -22-
never raised this theory before trial,                     this Court ruled on a

Motion      in   Limine        that     the    Government's        evidence    regarding

Indimi' s cash payments and advances were "directly relevant to

the central factual issues in this case of whether Defendant's

certifications with the Ex-Im Bank were false and whether the

Indimi commissions were 'regular.'" Order on Motion in Limine 12

at 1     [Dkt.   No.    3 84] . Consequently,         MWI was on notice that the

Government would argue that the many free                          services offered by

MWI    to   Indimi     were    indications       that   his       commissions were not

"regular," and that evidence was properly admitted.

       In   sum,       the    Government      presented       a    "legally    sufficient

evidentiary basis"            for     the   jury to     find that      the    commissions




wife for summer school expenses; provided Indimi with a company
plane; and acted as Indimi's power of attorney. Test. of David
Eller, Trial. Tr. Nov. 8, 2013, A.M. Session at 80:9-81:3,
84:10-16, 85:7-88:2; Test. of Cornelius Lang, Trial Tr. Nov. 14,
2013, P.M. Session at 14:12-15:22, Test. of Judith Ennis, Trial
Tr. Nov. 14, 2013, P.M. Session at 66:17-67:9, 69:9-74:12, 76:7-
77:6, 79:6-84:1, 89:3-91:5. Even though many of these payments
and services were deducted from Indimi's commissions,        the
evidence showed that, in general, MWI's other sales agents did
not receive such perks. Test. of Judith Ennis, Trial Tr. Nov.
14, 2013, P.M. Session at 92:2-4 (in 27 years with the company,
could not remember MWI paying the personal expenses of any other
sales agent); id. at 96:23-97:10 (noting that, after deposition,
she had found two examples of another agent receiving advances
against commission) .

                                              -23-
paid    to     Indimi     were        not     regular,   and,     thus,        that    MWI' s

certifications were false.ll Reeves, 530 U.S. at 149.

       C.     There Was Sufficient Evidence to Support the Jury's
              Finding that MWI Acted With the Requisite Scienter

       For both counts,          the Government needed to prove that MWI

acted       "knowingly."       The    Court    instructed the      jury:          "Under the

False       Claims Act,        knowingly means       that,      with       respect    to   the

allegedly       false     or    fraudulent        information,         a    defendant      had

actual       knowledge     of        the    information;                     or    acted    in

deliberate ignorance of the truth or falsity of the information,

or acted in reckless disregard of the truth or falsity of the

information." Trial Tr. Nov. 21, 2013, A.M. Session at 37:3-12.



ll MWI also argues that it is entitled to judgment as a matter of
law on the Government's "second, separate theory of falsity."
Renewed Mot. at 24. MWI insists that the Government alleged in
its Complaint that. the commissions were also irregular because
they included payments to Nigerian state officials. Renewed Mot.
at 24-29. The Government did not address this issue in its
Opposition, and, thus, it may be treated as conceded. Hopkins v.
General Bd. of Global Ministries, 284 F. Supp. 2d 15,_25 (D.D.C.
2003)   ("It is well understood in this Circuit that when a
plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to
address as conceded."). This concession is of little import,
however, because, even if this was a separate theory of falsity,
Defendant acknowledges it was an alternate Government theory of
falsity. Renewed Mot. at 24. Because the Government submitted
sufficient evidence to support the jury's finding that the
commissions were irregular based on the size of Indimi's
commissions,   its  failure   to prove   that  Indimi   used the
commission money to pay Nigerian state officials provides
Defendant no relief from the verdict.
                                -24-
       There      was     ample       evidence        to    support      a    finding          that       MWI

acted with, at a minimum,                     reckless disregard. See United States

v. Sci. Appl. Int'l Corp., 653 F. Supp. 2d 87,                                 97     (D.D.C. 2009)

(noting     that        jury    had      to    find        defendant     acted        "with         actual

knowledge,         or     at        least
                          _ _ _ _.c::.._::_    reckless        disregard            or        deliberate

ignorance      of       the    truth     or     falsity       of   its       claims")          (emphasis

added),    reversed in part on other grounds,                            626 F.3d 1257                   (D.C.

Cir. 2010).

       For example,            Ponce testified that MWI employees knew that

the commissions MWI was paying to Indimi were much higher than

those being paid to agents                      in other countries.                 Test.          of Juan

Ponce,     Trial     Tr.       Nov.     13,     2013,       A.M.   Session at             15:25-16:7,

29:1-7,     33:10-15.          James      Hess      testified        that     MWI        "should have

been      fully      aware"           that      the        purpose       of        the·       Supplier's

Certificates        was        to    ascertain        whether        nonregular           commissions

that     could      be     indicative          of     "noneconomic            decisions             by     the

purchaser of the products" were being paid.                                  Hess Dep.         at 46:5-

17, Sept. 22, 2004. The jury could have concluded, based on this

testimony,        that        MWI     acted      with       reckless         disregard             when     it

certified      that       commissions          constituting          26%-37%         of       the        sales

prices were         "regular."         See United States ex rel.                          K    &    R Ltd.

P'ship v.      Massachusetts Hous.                  Fin.     Agency,         530    F.3d 980,              983

(D.C. Cir. 2008)              (observing that reckless disregard under FCA is

                                                 -25-
an     "extreme     version          of     ordinary       negligence")           (quotation              and

citation omitted);                United States v.              Bourseau,       No.        03-907,      2006

WL     2961105,    at       *13     (S.D.    Cal.       Sept.    29,     2006)        ("[A]       provider

that     fails    to    inform       itself        of    the    reimbursement              requirements

acts in reckless disregard of the truth of its claims."), aff'd,

531 F.3d 1159 (9th Cir. 2008).

        In addition,          MWI employees testified that Eller personally

approved         every        commission            MWI        paid,         including            Indimi's

commissions.       Test.          of Thomas Roegiers,             Trial Tr.       Nov.           19,   2013,

A.M. Session at 20:9-23; Test. of Juan Ponce, Trial Tr. Nov. 13,

2013,    A.M Session at              9:22-10:8,         14:14-21.        Eller testified that

he     could     not        remember        MWI    ever        paying     any     other           agent     a

commission of more                than $5 million,              far     less    than the           largest

commission        Indimi       received,          $12.75       million.       Trial        Tr.    Nov.     8,

2013,    A.M.     Session at          120:11-22;          Def.'s       Ex.     500.     Eller signe?

the    majority        of    the    Supplier's          Certificates           declaring           that    no

irregular commissions                had been paid,              even though he               knew      that

Indimi's        commissions           were        significantly              higher         than       MWI's

average     commission            rates.     This       evidence       supports        a     finding       of

reckless disregard.                See United States v.                 Krizek,       111 F.3d 934,

942     (D.C.    Cir.       1997)    (upholding district                court's determination

that     failure       to    verify        and    review        false     submissions             rose     to

level of reckless disregard) .

                                                  -26-
       Moreover,   this   Court    has     already     noted   that   there   was

evidence that      Eller had actual knowledge that the commissions

should have been disclosed. Judgment Opinion, 2014 WL 521524, at

*11.   Ponce testified that MWI employees were informed that the

Ex-Im expected commissions to be no more than 5 percent. Test.

of Juan Ponce, Trial Tr. Nov.            13,   2013,   A.M. Session at 21:20-

22:10. He testified that,         "we knew that we were violating .

the rules. We just hoped that we would never get caught." Id. at

35:3-4. 12 Thus,    the Government submitted sufficient evidence to

the jury for it to find that MWI's certifications were made with

actual knowledge of falsity. 13

12
   MWI emphasizes that Ponce's testimony alludes to a need to
disclose all    commissions,  not   just  irregular commissions.
Renewed Mot. at 32 (citing Test. of Juan Ponce, Trial Tr. Nov.
13, 2013, A.M. Session at 63:15-64:3); Renewed Reply at 16.
However, in combination with Ponce's testimony that Eller,
Roegiers, Lang, and Bucknam knew and "had the same concern" and
that there were conversations about that concern, the testimony
still supports the jury's finding of scienter. Test. of Juan
Ponce, Trial Tr. Nov. 13, 2013, A.M. Session at 33:16-34:23.
13
   MWI insists that the Court must credit Eller's testimony that
he had a discussion with Marvin Solomon ("Solomon") of the
Export-Import    Bank    ( "Ex-Im")    regarding    the   Supplier's
Certificates in which Solomon told him that the Bank "do[es] not
get involved in commission levels." Renewed Mot. at 43 (citing
Test. of David Eller, Trial Tr. Nov. 8, 2013, A.M. Session at
120:22-122:1); Renewed Reply at 23. Mr. Eller's credibility was
highly contested at trial. Pls. ' Closing Arg. , Trial Tr. Nov.
21, 2013, A.M. Session 70:1-73:4 (arguing that Eller testimony
about Solomon was both internally inconsistent and directly
contracted by the testimony of others); see also Trial Tr. Nov.
8,   2013,  A.M.   Session at      63:19-21;   124:1-17  (Government
impeachment   of   Eller's    testimony   compared    to  deposition
                                     -27-
        All of MWI' s          arguments ask the Court to                          "make credibility

determinations or weigh the evidence," which of course it is not

permitted       to     do.      Reeves,           530     U.S.     at       149;      Estate    of       Mark

Parsons,       651     F. 3d    at       124.      For    example,          MWI     argues     that          its

evidence       that     it      interpreted              the     term     "regular          commissions"

reasonably was so overwhelming that it                                "negate [d]         an inference"

of reckless disregard. Renewed Mot. at 35-39. The Court included

an     instruction       specifically              informing          the      jury    that    it       could

consider such evidence as relevant to the issue of "knowledge."

Trial    Tr.    Nov.     21,        2013,    A.M.        Session at           37:3-12       (instructing

the    jury that       in determining whether MWI                           acted "knowingly,"                it

could "consider whether or not MWI had a reasonable and/or good

faith    interpretation of                  the    term        'regular        commissions'         on       the

Supplier's Certificates");                    see also Order on Motion in Limine 4

at 3    [Dkt. No.       397]. Thus, MWI was explicitly permitted to argue

that    its    certifications               were    based        on     its    reasonable          or    good

faith understanding of the term "regular commissions."                                         See Sci.

Applications,         653      F.    Supp.      2d at      97     ("A defendant's reasonable

interpretation           of         an    ambiguous            regulation           may     well        be     a

successful      defense         to       an alleged            FCA violation           in    appropriate

cases.")



testimony);          Trial      Tr.      Nov.      8,     2013,         P.M.       Session,     6:1-7:15
 (same) .
                                                   -28-
         Thereafter,       the     jury weighed the             evidence        and     found    that

MWI' s     evidence of good faith and reasonable                        interpretation was

not   as    credible or persuasive               as     the Government's              evidence to

the      contrary.        As     discussed       above,        the    Government          produced

evidence         that     MWI     employees       knew       that     the       Ex-Im     expected

commissions to be much lower than the commission being paid to

Indimi, 14 and knew that                the commissions being paid to him were

significantly           higher     than    those       being    paid       to     any    other    MWI

sales      agents.       Given    that    the    Court       must    not    make        credibility

findings or weigh the evidence,                       Reeves,    530 U.S.         at 149,       it is

clear that        MWI' s       argument    about       the   "reasonableness"             of    their

interpretation is without merit.

         MWI's        other      arguments       similarly           reiterate           the     same

arguments it made to the jury in its closing argument.                                    In doing

so,   it misstates the role of this Court, which is only to decide

whether sufficient               evidence was presented to                  the    jury on each

element.         The     jury     was     presented          with    MWI's         evidence       and

arguments        at     trial,    and was       not    persuaded by             them.    Given    the

sufficiency of           the Government's evidence to support the                              jury's

finding of scienter,              MWI's insistence that the jury should have

14
   This distinguishes this case from K & R Ltd., 530 F. 3d 980,
wherein plaintiffs could not point to any evidence that might
have warned Defendant that its interpretation of a particular
term was incorrect. Id. at 983 (quoting Safeco Ins. Co. of Am.
v. Burr, 551 U.S. 47, 70 (2007)).
                              -29-
interpreted the       evidence differently cannot                  support       a    reversal

of the verdict.

IV.    CONCLUSION

       After a    careful review of the record,                   the Court concludes

that   there   was    a    "legally    sufficient         evidentiary basis                 for    a

reasonable     jury   to    find"     for    Plaintiffs.         Reeves,       53 0   U.S.        at

149.    Consequently,       Defendant         has       failed    to     establish           that

"reasonable men and women could not                     have     reached a       verdict          in

plaintiff's      favor,"    Nelson,     953        F.   Supp.    2d    at     13 0,   and     its

Motion for Judgment as a Matter of Law                      [Dkt.      No.    443]     and its

Renewed Motion for Judgment             as    a    Matter of Law             [Dkt.    No.    478]

shall be denied.

       An Order shall accompany this Memorandum Opinion.




June 25, 2014
                                                    G'Llw~Z
                                                   Gladys Ke~sler
                                                   United States District Judge


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                                            -30-
