United States Court of Appeals

Case: 09-2280 Document: 39 Date Filed: 07/01/2010 Page: 46
performed that work is immaterial as a matter of law to any government
knowledge defense. The fact that the NGB liked IIF cannot as a matter of law
excuse IIF from FCA liability for lying to obtain its GSA MAS contracts; and then
using those GSA contracts to knowingly bill the GSA for unqualified labor
delivered to the NGB at inflated rates.
B. The Trial Court’s Error Was Immensely Prejudicial to Ubl
As a result of the court’s erroneous denial of Ubl’s motion in limine, the
court permitted testimony and explicit argument to the jury that NGB could select
IIF personnel who did not qualify for the labor category and price at which IIF
billed them so long as NGB was satisfied with the work. This testimony and
argument was immensely prejudicial to Ubl’s case. It reduced this FCA case to the
equivalent of a breach of contract action where the ultimate question for the jury
was not whether IIF knowingly billed GSA for unqualified labor, but rather
whether NGB was “happy” with IIF’s work – even if the personnel did not satisfy
the labor category definition for the prices at which they were billed. Thus, IIF
was allowed to present testimony that NGB was pleased with IIF’s work, and in
the view of NGB, IIF had selected the right people for the job. See e.g., J.A.1034-
35 [Staresina], J.A. 1083a-d [Lowman].
In closing argument, IIF counsel heavily emphasized this point to the jury by
arguing that NGB personnel “were happy with IIF. IIF picks the right people for
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