Dish Network Corp. should face a False Claims Act lawsuit accusing the company of using sham small businesses to win FCC communications licenses worth billions of dollars, whistleblower Vermont National Telephone Co. will argue in a Washington, D.C., appeals court Thursday.
Vermont National said its suit was improperly dismissed under the FCA’s government-action bar, which precludes suits “based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the government is already a party.”
Vermont National has told the U.S. Court of Appeals for the D.C. Circuit that its FCA suit—filed days after an FCC challenge to the licenses—shouldn’t have been dismissed because the FCC proceeding never led to a penalty.
There is “very little precedent” analyzing the government-action bar defense and its elements, especially at the appellate level, said Andrew C. Bernasconi, who represents FCA defendants. He is with Reed Smith LLP in Washington.
The potential importance of the ruling is heightened by the stature of the D.C. Circuit in administrative law, he said.
The entities affiliated with Dish gave up the licenses and made a “default payment” after the FCC proceeding. But those actions were completely voluntary under FCC rules, Vermont National said, meaning Dish never paid a penalty for...
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