February 21, 2017

Kuwaiti Companies Can’t Exit FCA Suit Over Service Process

By the C|C Whistleblower Lawyer Team

On Friday, U.S. District Judge Thomas W. Thrash, Jr. in Georgia declined to dismiss a False Claims Act case against Kuwaiti companies accused of participating in a plan to overcharge the U.S. government for fresh fruits and vegetables. The defendants, government contractors who supplied food to troops in the Middle East, had moved to dismiss on a number of grounds, including that they were not properly served.  Setting the other arguments aside, the court addressed only the sufficiency of service.

Kamal Al-Sultan first filed suit against the defendants in November of 2005, and the government decided to intervene in 2009. Since 2011, the plaintiffs’ attempts to serve the defendants were consistently obstructed by the Kuwaiti government.  As a result, Judge Thrash granted the U.S. government’s motion to allow for service by “alternate means”—in this case by publication, service on domestic counsel, or by email or international courier.

The defendants argued that the plaintiffs’ efforts to carry out service by the means authorized in the court’s order were legally insufficient. They also argued that the alternate means themselves were legally sufficient.  Judge Thrash disagreed, stating:

“The fundamental question when service is being challenged is whether the means chosen would give a defendant reasonable notice and an opportunity to be heard. The Court has already determined that the various alternative means of service sought by the plaintiffs satisfied that standard, and the plaintiffs have proven that they have complied with that Order.”

Judge Thrash will rule on the substantive claims raised in the motions to dismiss at a later date.

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