Q1: You and your firm, McCormack Suny, successfully defeated $125 million in claims asserted on behalf of 45 municipalities, charter schools and state agencies for your client. What was your experience like managing that case?
There were many components to the effective management of the case. The plaintiffs refused to try the case by exemplar, so we were forced to defend a case involving 45 Massachusetts municipalities, state agencies and thousands of alleged false claims (one for each pour) across more than 50 building projects and sidewalk projects across these municipalities.
In terms of case management, we were successfully able to identify and retain four national construction industry experts with diverse backgrounds necessary to cover the multiple issues raised in the case. We took 35 depositions over the last year of the litigation, while filing summary judgment pleadings involving thousands of pages of exhibits and a hundred-plus pages of briefing involving a very complex area of law that required a national case law search for applicable precedent on multiple legal points due to the dearth of Massachusetts case law.
The case also involved taking extensive discovery from a dozen local concrete companies who were resistant to participating but were ordered to do so as a result of our motion practice. This was a very intense, deadline driven experience, that we were handling for a great client that was fully invested in participating in the case. It required stamina, focus and creative lawyering regarding both the substantive and procedural issues raised throughout the case, and was a team-wide effort that at times included as many as six attorneys (including key contributions from Alexis Smith Hamdan and Tracy Moran) and full-time attention from our absolutely tireless litigation support staff.
Q2: What makes this case stand out?
Aside from the above, the summary judgment decision sets a tremendous precedent under the Massachusetts False Claims Act, reflecting rulings on all of the elements of a false claims case from the Scienter requirement, to the “materiality” requirement, and comes against a backdrop of virtually no relevant court decisional case law. We were able to rely on hundreds of analogous federal false claims cases.
It is also noteworthy that we essentially engineered a process through litigation tactics of having the Court approve a mandated process of requiring each municipality to declare whether it wished to participate in the case. In a typical litigation, you have one (or a small handful) of affected government entities, and once the Relators’ counsel is given authority by the Government to pursue the case, there is never any further question about who the participating plaintiff/municipalities are. In our case though, because the whistleblowers were unaffiliated with the government (they were former Tresca truck drivers), we were able to persuade dozens of municipalities along the way that the case had no merit and they should “withdraw.”
This led to dozens of municipalities deciding to drop out of the case which the court endorsed thereby reducing our client’s exposure. We were partly able to accomplish this due to the extensive efforts of the Business Litigation Session (both Judges and Clerks) to review the merits of the case as it went along, and issue rulings allowing for a more effective and fair case management process.
Q3: Have you handled any other major Federal False Claims Act cases?
Yes. In 2019 we handled the plaintiff side of a false claims case in representing a whistleblower who brought suit in conjunction with the US Attorneys Office in Boston against an international orthopedics device manufacturing company. The suit alleged illegal kickbacks to an orthopedic surgeon, and the case was settled for a payment of $16 million to the plaintiffs.
Q4: Can you expand on the specific challenges and strategies involved in the defense of False Claims Act cases?
The case really started out as a monster in that it alleged three different types of false claims across (as noted above thousands of pours and dozens of municipalities). We had to try to come up with a way to manage and focus our defense in the face of Plaintiffs refusing to try the case by exemplar, which is a process where both sides select one or two example projects and agree that those cases will be the focus of discovery.
Q5: How do you foresee this case impacting the construction industry going forward?
We have already heard from multiple people in the industry who are applauding our results. Losing the case would have undoubtedly opened the door to much copy cat litigation. The Plaintiffs’ Counsel and Relators stood to make in excess of $25 million if they were successful. Notwithstanding our successful result, which is undoubtedly a crucial victory for the industry, there remain pitfalls for those involved in the pouring industry in terms of both their business practices and their contractual arrangements. As the court noted, contractual language plays a big role in deciding the scope of a party’s potential liability.
The decision is also instructive for government employees. If you want certain industry specifications or even contractual specifications complied with, you need to be aware of what those are and be engaged in the contracting process as it plays out to make sure those provisions are being followed. You can always sue for breach of contract, if the specifications are in the contract, but this ruling establishes that for thereto be any kind of determination of “fraud on the government” you need much more, you need to show that the government regularly follows the specifications and/or that it took action against the offending party after it found out about the alleged fraud. None of those circumstances were present in the Tresca case, and we were able to prove this through discovery, and this was a big reason why the case was dismissed on summary judgment, and before trial (which had been scheduled for three weeks in April 2024).
Q6: Could you share a bit about your background and provide an overview of your firm?
I have been practicing law for 33 years, working for two of the nation’s preeminent law firms, Davis Polk & Wardwell in New York and then Ropes & Gray in Boston, as a complex civil litigation attorney. I then spent a decade as a senior business manager and legal counsel to Cummings Properties (Woburn) handling the company’s most significant business and legal matters (both real estate and litigation).
In 2012, I desired to get back to private law firm practice and went to the McCormack Firm (founded by former Boston City Councilor Mike McCormack) to handle litigation and commercial real estate matters. In 2016, the McCormack Firm closed, coinciding with Mike’s stepping down as Managing Partner, and I founded McCormack Suny in July 2016.
The firm is now in its eighth year and has grown to eight attorneys, and specializes in complex civil litigation, including all types of corporate litigation, contract disputes, partnership disputes, and corporate governance matters. The firm also handles a wide variety of governmental litigation, including false claims act cases, wage disputes, and investigative matters involving the Securities and Exchange Commission, the US Attorney’s Office, and the Massachusetts Attorney General’s Office.
Our litigation group also handles real estate litigation matters, including commercial landlord tenant disputes, zoning, and other land use litigation. Key attorneys in the litigation group include senior litigation counsel, Alexis Smith Hamdan, and Tracy Moran, who both played a key role in the Tresca false claims case, as well as John Bowen and Andrea Davulis. The firm also handles commercial real estate matters of all types and zoning and permitting matters, with a particular focus on Boston-based matters, including representing an international transportation company responsible for handling the Commonwealth’s commuter rail system, as well as TD Garden in local permitting matters. Michael McCormack continues to play an active role in the practice as does Patrick Moynihan, also of counsel, and former general manager of the MBTA.
More info can be found here.