UNITED STATES OF AMERICA, et al v. SECOND CHANCE BODY ARMOR INC et al

Filing 629

MEMORANDUM OPINION AND ORDER that the conspiracy claim asserted under the False Claims Act in Count 3 of the United States' second amended complaint remains at issue in this case and will be decided following the bench trial currently set to begin on June 18, 2018. Signed by Judge Paul L. Friedman on April 18, 2018. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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Plaintiffs,
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v.
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SECOND CHANCE BODY ARMOR, INC.,
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et al.,
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Defendants.
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__________________________________________)
UNITED STATES OF AMERICA, ex rel.,
AARON J. WESTRICK, Ph.D.,

Civil Action No. 04-0280 (PLF)

MEMORANDUM OPINION AND ORDER
In his pretrial brief [Dkt. No. 531], the relator, Dr. Aaron J. Westrick, asks the
Court to clarify whether the conspiracy claim asserted under the False Claims Act is still alive in
this case and whether the parties may proceed at trial, among other things, on a conspiracy theory
under Count 3 of the United States’ second amended complaint. According to Dr. Westrick,
Judge Richard W. Roberts, to whom this case was previously assigned, dismissed the conspiracy
claim in the related case, United States v. Toyobo Co., Ltd. (Civil Action No. 07-1144), but not
in the instant case, United States ex rel. Westrick v. Second Chance Body Armor, Inc. (Civil
Action No. 04-0280). Dr. Westrick suggests that this Court inadvertently created some
confusion about the matter in its decision of July 14, 2017 resolving the United States’
subsequent motion for reconsideration. See United States ex rel. Westrick v. Second Chance
Body Armor, Inc., 266 F. Supp. 3d 110 (D.D.C. 2017). The Court agrees.
In the Toyobo case (Civil Action No. 07-1144), Judge Roberts granted the motion
of defendants Toyobo Company Ltd. and Toyobo America, Inc. (collectively, “Toyobo”) to

dismiss the conspiracy claim between Toyobo and the bulletproof vest manufacturers other than
Second Chance, which was not named as a defendant in that case. See United States v. Toyobo
Co., Ltd., 811 F. Supp. 2d 37, 51 (D.D.C. 2011). By contrast, in this case (Civil Action
No. 04-0280), Judge Roberts denied Toyobo’s motion to dismiss the conspiracy claim between
Toyobo and Second Chance. See United States ex rel. Westrick v. Second Chance Body Armor,
Inc., 685 F. Supp. 2d 129, 141 (D.D.C. 2010). He found that the four corners of the amended
complaint contained detailed assertions of meetings between Toyobo and Second Chance which
were sufficient “at the motion to dismiss stage” to allege a claim for conspiracy. See id.
Later, Judge Roberts considered the parties’ cross motions for partial summary
judgment on various claims asserted in both actions. See United States ex rel. Westrick v.
Second Chance Body Armor Inc., 128 F. Supp. 3d 1 (D.D.C. 2015), recons. denied in part sub
nom. United States v. Second Chance Body Armor Inc., No. 04-0280, 2016 WL 3033937
(D.D.C. Feb. 11, 2016). Judge Roberts denied in relevant part Toyobo’s motion for partial
summary judgment as to the conspiracy claim between Toyobo and Second Chance (Count 3).
See United States ex rel. Westrick v. Second Chance Body Armor Inc., 128 F. Supp. 3d at 19,
21-22. Although the United States moved for reconsideration of Judge Roberts’ summary
judgment opinion, Toyobo did not. See United States v. Second Chance Body Armor Inc., 2016
WL 3033937, at *1.
When the United States filed a second motion for reconsideration of Judge
Roberts’ summary judgment decision, this Court addressed the conspiracy claim alleged between
Toyobo and Second Chance in the following footnote:
The United States’ supplemental brief describes these events as a
conspiracy between Toyobo and Second Chance [additional
quotation marks omitted]. US Supp. at 15 n.43. Judge Roberts
previously rejected any such conspiracy, stating: “The
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government’s allegations that the vest manufacturers were aware
by mid-2001 that Zylon was defective [ ] yet continued to sell
Zylon vests through 2005 are insufficient to aver that Toyobo and
the vest manufacturers agreed to anything. Moreover, the notion
that Toyobo conspired with the vest manufacturers is inconsistent
with the government’s allegations that Toyobo misrepresented the
extent and severity of Zylon’s degradation to the vest
manufacturers to induce them to continue to sell their vests to the
government.”
See United States ex rel. Westrick v. Second Chance Body Armor, Inc., 266 F. Supp. 3d at 116
n.8 (quoting United States v. Toyobo Co. Ltd., 811 F. Supp. 2d at 51). The confusion to which
Dr. Westrick now points arose because the first sentence of the footnote referred to the
conspiracy between Toyobo and Second Chance alleged in the instant action, Civil Action
No. 04-0280. The second sentence then incorrectly suggested that Judge Roberts had rejected
this same Toyobo-Second Chance conspiracy, when in fact he had not. The quotation which
follows is an excerpt from Judge Roberts’ earlier opinion, United States v. Toyobo Co. Ltd., 811
F. Supp. 2d at 51, dismissing the conspiracy claim asserted in the Toyobo case, Civil Action
No. 07-1144, between Toyobo and the bulletproof vest manufacturers other than Second Chance.
Accordingly, it is hereby
ORDERED that the conspiracy claim asserted under the False Claims Act in
Count 3 of the United States’ second amended complaint remains at issue in this case and will be
decided following the bench trial currently set to begin on June 18, 2018.
SO ORDERED.

/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: April 18, 2018

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