William H. Narwold (pro hac vice) [email protected] Mathew P. Jasinski (pro hac vice) [email protected] Michael J. Pendell (pro hac vice) [email protected] Laura W. Ray (pro hac vice) Sarah M. Frazier (pro hac vice) [email protected] [email protected] MOTLEY RICE LLC BERG & ANDROPHY 20 Church St., 17th Floor 3704 Travis St. Hartford, CT 06103 Houston, TX 77002 Tel.: (860) 882-1681 Tel: (713) 529-5622 Fax: (860) 882-1682 Fax: (713) 529-3785

John P. Cashion (Alaska Bar No. 9806025) Charles H. Rabon, Jr. (pro hac vice) [email protected] [email protected] CASHION GILMORE LLC RABON LAW FIRM, PLLC 1007 W. 3rd Ave., Suite 301 225 E. Worthington Ave., Ste. 100 Anchorage, AK 99501 Charlotte, NC 28203 Tel.: (907) 222-7936 Tel.: (704) 247-3247 Fax: (907) 222-7038 Fax: (704) 208-4645 [email protected] Attorneys for Relator Ben Ferris

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, § Case No. 3:15-cv-00150-HRH ex. rel. BEN FERRIS, § § Plaintiff, § RELATOR’S OPPOSITION § TO DEFENDANTS’ MOTION v. § TO DISMISS THE SECOND § AMENDED COMPLAINT AFOGNAK NATIVE CORPORATION and § PURSUANT TO RULES 12(b)(6) ALUTIIQ, LLC, § AND 9(b) [212] § Defendants. §

United States ex rel. Ben Ferris v. Afognak Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 1 of 37 TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. BACKGROUND ...... 2

A. The Small Business Act’s 8(a) program is reserved exclusively for small business concerns, irrespective of their ownership...... 2 B. Relator alleges that Afognak has misrepresented its subsidiaries’ small business status...... 6 C. The only issue before the Court is whether Relator sufficiently has alleged that the misrepresentations were material...... 8 III. LEGAL STANDARD ...... 10

IV. ARGUMENT ...... 11

A. Afognak’s misrepresentations are material because they have “a natural tendency to influence” the payment or receipt of money or property...... 12 1. A reasonable person would attach importance to Afognak’s misrepresentations...... 15 2. Even if a reasonable person would not attach importance to Afognak’s misrepresentations, Afognak knew or had reason to know that the government did...... 17 B. Relator sufficiently has alleged Afognak’s material misrepresentations...... 19 1. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries are separate and distinct small business concerns...... 20 2. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries do their own work as separate and distinct small business concerns...... 22 3. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries are managed as separate and distinct small business concerns...... 23 4. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries pursue growth and development as separate and distinct small business concerns...... 24 C. There is no evidence that the government has actual knowledge of Afognak’s violations...... 25 V. CONCLUSION ...... 28

United States ex rel. Ben Ferris v. Afognak - i - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 2 of 37 TABLE OF AUTHORITIES

Cases

Ab-Tech Constr. v. United States, 31 Fed. Cl. 429 (Fed. Cl. 1994) ...... 18

Am. Elec. Co. v. United States, 270 F. Supp. 689 (D. Haw. 1967) ...... 4

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...... 10

Autodesk, Inc. v. Dassault Systemes Solidworks Corp., No. C 08-04397 WHA, 2008 U.S. Dist. LEXIS 109800 (N.D. Cal. Dec. 18, 2008) ...... 10

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...... 10

Berg v. Honeywell Int’l, Inc., 580 Fed. App’x 559 (9th Cir. 2014) ...... 27

Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) ...... 11

Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993 (9th Cir. 2010) ...... 10, 11

Hooper v. Lockheed Martin Corp., 688 F.3d 1037 (9th Cir. 2012) ...... 27

In re Reality Technologies, Inc., SBA No. BDPT-488, 2013 WL 215002 (May 3, 2013) ...... 23

In re Sparccom & Assocs., SBA No. BDPT-501, 2013 WL 4502314 (Aug. 19, 2013) ...... 25

Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940 (9th Cir. 2005) ...... 10

Rose v. Stephens Inst., No. 09-cv-05966-PJH, 2016 U.S. Dist. LEXIS 128269 (N.D. Cal. Sept. 20, 2016) ...... 25

Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008) ...... 10

United States ex rel. Ben Ferris v. Afognak - ii - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 3 of 37 United States ex rel. Am. Sys. Consulting v. ManTech Advanced Sys. Int’l, 600 Fed. Appx. 969 (6th Cir. 2015) ...... 27

United States ex rel. Handal v. Cent. Empl. Training, No. 2:13-cv-01697-KJM-KJN, 2016 U.S. Dist. LEXIS 105158 (E.D. Cal. Aug. 8, 2016) ...... 11, 16

United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908 (4th Cir. 2003) ...... 27

United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166 (9th Cir. 2006) ...... 11, 16

United States ex rel. Jordan v. Northrop Grumman Corp., No. CV 95-2985 ABC, 2002 U.S. Dist. LEXIS 26674 (C.D. Cal. Aug. 5, 2002) ...... 28

United States v. Palin, No. 1:14-cr-00023, 2016 U.S. Dist. LEXIS 111225 (W.D. Va. Aug. 22, 2016) ...... 12

United States v. United Healthcare Ins. Co., 832 F.3d 1084 (9th Cir. 2016) ...... 10, 11

United States, ex rel. Escobar v. Universal Health Servs., 842 F.3d 103, 2016 U.S. App. LEXIS 21072 (1st Cir. Nov. 22, 2016)...... passim

United States, ex rel. Longhi v. Lithium Power Techs., Inc., 575 F.3d 458 (5th Cir. 2009) ...... 12

United States, ex rel. Miller, 840 F.3d 494, 2016 U.S. App. LEXIS 18758 (8th Cir. Oct. 19, 2016) ...... 14, 16

Universal Health Services, Inc. v. United States, ex rel. Escobar, 136 S. Ct. 1989 (Jun. 16, 2016) ...... passim

Statutes

15 U.S.C. § 631 ...... 3

15 U.S.C. § 631(f)(1)(E) ...... 17

15 U.S.C. § 631(f)(2)(C) ...... 17

15 U.S.C. § 632(a)(1) ...... 3, 4, 21

15 U.S.C. § 632(a)(2)(A) ...... 4

15 U.S.C. § 632(a)(2)(B) ...... 4

15 U.S.C. § 632(w)(1)...... 8, 17

United States ex rel. Ben Ferris v. Afognak - iii - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 4 of 37 15 U.S.C. § 632(w)(2)...... 1

15 U.S.C. § 636(j)(10) ...... 3

15 U.S.C. § 636(j)(10)(J)(ii)(II) ...... 5

15 U.S.C. § 636(j)(11)(B)(iii) ...... 5

15 U.S.C. § 637(a) ...... 3

15 U.S.C. § 637(a)(1) ...... 3

15 U.S.C. § 637(a)(1)(B) ...... 3

15 U.S.C. § 637(a)(13) ...... 4

15 U.S.C. § 637(a)(4) ...... 4

15 U.S.C. § 637(a)(4)(A)(i)(II) ...... 5

15 U.S.C. § 637(a)(4)(B)(ii) ...... 5

31 U.S.C. § 3729(a)(1)(A) ...... 11

31 U.S.C. § 3729(a)(1)(B) ...... 11

31 U.S.C. § 3729(b)(4) ...... 12

31 U.S.C. §§ 3729-3733 ...... 1

43 U.S.C. § 1626(e)(1) ...... 4

Public Laws

Pub. L. 101-574, § 204, 104 Stat. 2819 (Nov. 15, 1990) ...... 5

Pub. L. No. 102-415, § 10, 106 Stat. 2115 (Oct. 14, 1992) ...... 4

Pub. L. No. 111-21 at § 4, 123 Stat. 1623 (2009) ...... 12

Pub. L. No. 83-163, § 207, 67 Stat. 236 (Jul. 30, 1953) ...... 3

Pub. L. No. 83-163, §§ 202, 203, 67 Stat. 232-33 (Jul. 30, 1953) ...... 3

Pub. L. No. 83-163, §§ 207(c)-(d), 67 Stat. 236 (Jul. 30, 1953) ...... 3

Pub. L. No. 85-536, § 8(a), 72 Stat. 384 (Jul. 18, 1958) ...... 3

United States ex rel. Ben Ferris v. Afognak - iv - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 5 of 37 Pub. L. No. 95-507, § 201, 92 Stat. 1760-61 (Oct. 24, 1978) ...... 17

Pub. L. No. 95-507, § 204, 92 Stat. 1765-66 (Oct. 24, 1978) ...... 3

Pub. L. No. 99-272, § 18015, 100 Stat. 370-71 (Apr. 7, 1986) ...... 4

Pub. L. No. 99-562, 100. Stat. 3153 (Oct. 27, 1987) ...... 27

Rules

Fed. R. Civ. P. 12(b)(6)...... 1, 10

Fed. R. Civ. P. 9(b) ...... 1, 10, 11

Regulations

13 C.F.R. § 121.101 ...... 6

13 C.F.R. § 121.103(a)(1) ...... 5

13 C.F.R. § 121.103(e)...... 5

13 C.F.R. § 121.108(b)(1) ...... 17

13 C.F.R. § 122.104(d)(1) ...... 4

13 C.F.R. § 122.106(b)(4)(i) ...... 4

13 C.F.R. § 124.1 ...... 4

13 C.F.R. § 124.102 ...... 16

13 C.F.R. § 124.109(c)(1) ...... 21

13 C.F.R. § 124.109(c)(2) ...... 16

13 C.F.R. § 124.109(c)(2)(iii) ...... 5

13 C.F.R. § 124.109(c)(3)(ii) ...... 26

13 C.F.R. § 124.109(c)(4) ...... 23

13 C.F.R. § 124.109(c)(4)(i) ...... 23

13 C.F.R. § 124.109(c)(4)(ii) ...... 24

13 C.F.R. § 124.2 ...... 4

United States ex rel. Ben Ferris v. Afognak - v - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 6 of 37 13 C.F.R. § 124.402(c)...... 24

13 C.F.R. § 124.403(c)(2) ...... 24

13 C.F.R. § 124.501(g) ...... 16

Federal Register

34 Fed. Reg. 4937-38 (Mar. 7, 1969) ...... 3

35 Fed. Reg. 4939-40, § 4 (Mar. 21, 1970) ...... 3

76 Fed. Reg. 8222, 8256 (Feb. 11, 2011) ...... 26

81 Fed. Reg. 34243, 34244 (May 31, 2016) ...... 22

Legislative History

136 Cong. Rec. S17645-02, 17647 (Oct. 27, 1990) ...... 5

Other Authorities

Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93 (2005) ...... 28

Restatement (Second) of Torts § 538 (1977) ...... 14

SBA, About the 8(a) Business Development Program, https://www.sba.gov/contracting/government-contracting-programs/8a-business- development-program/about-8a-business-development-program (last visited Jan. 2, 2017) ...... 4

Suppl. Br. for Amicus Curiae Taxpayers Against Fraud Educ. Fund, United States, ex rel. Escobar v. Universal Health Servs., No. 14-1423, at 7 (1st Cir. Aug. 22, 2016) ...... 14

U.S. Gov’t Accountability Office, GAO-06-399, Contract Management: Increased Use of Alaska Native Corporations’ Special 8(a) Provisions Calls for Tailored Oversight (2006) ...... 26, 28

U.S. Gov’t Accountability Office, GAO-12-84, Federal Contracting: Monitoring and Oversight of Tribal 8(a) Firms Need Attention (2012) ...... 26, 27, 28

United States ex rel. Ben Ferris v. Afognak - vi - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 7 of 37 I. INTRODUCTION

Relator Ben Ferris (“Relator”) opposes the November 28, 2016 motion to dismiss filed by

Defendants Afognak Native Corporation and Alutiiq, LLC (together, “Afognak”).1

In order to qualify for set-aside and no-bid government contract work under the Small

Business Administration’s (“SBA”) 8(a) Small Business Development Program, Afognak certifies that its subsidiaries qualify as small businesses. 15 U.S.C. § 632(w)(2). As alleged in the

Second Amended Complaint (“SAC”),2 however, the truth is that Afognak’s subsidiaries exist only on paper, have no real employees except those of their parent company, and have only

“placeholder” managers who have no knowledge of which small businesses they “manage” and instead work solely to advance the interests of Afognak itself. (See generally, e.g., SAC, ¶ 39,

¶¶ 49-83.) As a result, Afognak has caused damages to the United States “based on the total amount expended” on these contracts. 15 U.S.C. § 632(w)(2). Relator brought this action under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, to recover such damages, and civil penalties, on behalf of the United States of America.

Afognak previously moved to dismiss Relator’s First Amended Complaint on the ground that Relator had not sufficiently stated a claim “because nothing about the operational structure pled in the Amended Complaint would disqualify [Afognak]’s businesses from participating” in

1 Dkt. #212, Defs.’ Mot. to Dismiss Second Am. Compl. Pursuant to Rules 12(b)(6) and 9(b) (cited herein as “Mot.”). 2 Pursuant to the Confidentiality and Protective Order in this case (Dkt. #71), Relator initially filed a redacted version of the SAC on the public docket (Dkt. #202) and moved to seal the unredacted version of the SAC, and exhibits 12 and 13 thereto, for a temporary period of fourteen days (Dkt. #203), which motion the Court granted on November 21, 2016 (Dkt. #209). As Afognak notes, the temporary seal has expired. (See Mot. at 9 n.6.) Accordingly, Relator herewith has filed the unredacted version of the SAC on the public docket. (Dkt. #217.)

United States ex rel. Ben Ferris v. Afognak - 1 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 8 of 37 the 8(a) Program.3 Afognak lost that argument. (Dkt #48.) Now, relying upon the Supreme

Court’s recent decision in Universal Health Services, Inc. v. United States, ex rel. Escobar,

136 S. Ct. 1989 (Jun. 16, 2016), Afognak insists that whether its subsidiaries qualified for the

8(a) program is immaterial. Specifically, Afognak’s second motion to dismiss contends that

Relator has failed “to plead any facts showing the government actually does not pay claim involving the statutory violations in question.” (Mot. at 1 (emphasis omitted).)

This is one way to prove materiality, to be sure. But Escobar itself makes clear that it is not the only way. See Escobar, 136 S. Ct. at 2003 (“proof of materiality can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims” (emphasis added)); see also id. at 2001 (“materiality cannot rest on a single fact or occurrence as always determinative” (internal quotation marks omitted)). Instead, a representation is material if either (1) a reasonable person would attach importance to it in determining his or her choice of action in the transaction or (2) the defendant knew or had reason to know that the recipient of the representation attaches importance to it, even though a reasonable person would not. Id. at 2002-2003. As set forth below, Relator meets both standards.

Accordingly, Afognak’s second motion to dismiss should be denied.

II. BACKGROUND

A. The Small Business Act’s 8(a) program is reserved exclusively for small business concerns, irrespective of their ownership.

The purpose of the Small Business Act (the “Act”) is to “aid, counsel, assist, and protect”

“small-business concerns” and “to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government” be placed with such

3 Dkt. #32, Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ 1st MTD”), at 13.

United States ex rel. Ben Ferris v. Afognak - 2 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 9 of 37 concerns. See 15 U.S.C. § 631. The Act defines a “small-business concern” as “one which is independently owned and operated and which is not dominant in its field of operation . . . .”

15 U.S.C. § 632(a)(1). Both the purpose of the Act and definition of a “small-business concern” have remained virtually unchanged since the Act’s enactment in 1953. Compare 15 U.S.C.

§§ 631, 632(a)(1), with Pub. L. No. 83-163, §§ 202, 203, 67 Stat. 232-33 (Jul. 30, 1953).

Under § 207 of the 1953 Act—which became § 8(a) in 19584—Congress authorized the

SBA to enter into contracts with the government “to furnish articles, equipment, supplies or materials,” and to subcontract the performance of those contracts to “small-business concerns or others.” Pub. L. No. 83-163, §§ 207(c)-(d), 67 Stat. 236 (Jul. 30, 1953) (codified at 15 U.S.C.

§ 637(a)(1)). By 1970, the SBA had begun using § 8(a) as a vehicle for strengthening minority- owned small businesses in conjunction with President Nixon’s creation of a minority business enterprise program.5 Congress formally established the 8(a) program in 1978, see Pub. L.

No. 95-507, § 204, 92 Stat. 1765-66 (Oct. 24, 1978),6 which it reserved exclusively for small business concerns owned and controlled by socially and economically disadvantaged individuals, id., § 202, 92 Stat. 1761 (codified at 15 U.S.C. § 637(a)(1)(B)). In 1986, Congress opened up the

8(a) program to small business concerns owned by “economically disadvantaged Indian

4 Pub. L. No. 85-536, § 8(a), 72 Stat. 384 (Jul. 18, 1958). 5 See Exec. Order No. 11458, 34 Fed. Reg. 4937-38 (Mar. 7, 1969); see also Exec. Order No. 11518, 35 Fed. Reg. 4939-40, § 4 (Mar. 21, 1970) (“the [SBA] shall particularly consider the needs and interests of minority-owned small business concerns”). 6 “There is established within the Administration a small business and capital ownership development program (hereinafter referred to as the “Program”) which shall provide assistance exclusively for small business concerns eligible to receive contracts pursuant to section 637(a) of this title.” 15 U.S.C. § 636(j)(10).

United States ex rel. Ben Ferris v. Afognak - 3 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 10 of 37 Tribe[s],” including Alaska Native Corporations (“ANCs”).7 See Pub. L. No. 99-272, § 18015,

100 Stat. 370-71 (Apr. 7, 1986) (codified at 15 U.S.C. §§ 637(a)(4), 637(a)(13)).

As expressed by the SBA, the purpose of the 8(a) program is “to assist eligible small disadvantaged business concerns compete in the American economy through business development.” 13 C.F.R. § 124.1. “A firm that completes its nine year term of participation in the 8(a) BD program is deemed to graduate from the program.” 13 C.F.R. § 124.2. The goal “is to graduate 8(a) firms that will go on to thrive in a competitive business environment.” SBA,

About the 8(a) Business Development Program.8

In addition to the statutory definition of a “small business concern”—i.e., “one which is independently owned and operated and which is not dominant in its field of operation,”

15 U.S.C. § 632(a)(1)—the Act empowers the SBA to “specify detailed definitions or standards by which a business concern may be determined to be a small business concern . . . .” 15 U.S.C.

§ 632(a)(2)(A). In fashioning such size standards, the SBA may utilize, among other criteria, the number of employees and dollar volume of business. See 15 U.S.C. § 632(a)(2)(B). As a general rule, the SBA includes both the small business concern and its “affiliates” in applying these standards. See, e.g., 13 C.F.R. § 122.104(d)(1); 13 C.F.R. § 122.106(b)(4)(i). Otherwise,

“corporate giants with small affiliates . . . could reap the benefits of small business contracts . . . .” See Am. Elec. Co. v. United States, 270 F. Supp. 689, 692 (D. Haw. 1967).

7 In 1992, Congress amended the Alaska Native Claims Settlement Act (“ANCSA”) to clarify that ANCs are “economically disadvantaged” for all purposes of federal law. Pub. L. No. 102-415, § 10, 106 Stat. 2115 (Oct. 14, 1992) (codified at 43 U.S.C. § 1626(e)(1)). 8 https://www.sba.gov/contracting/government-contracting-programs/8a-business- development-program/about-8a-business-development-program (last visited Jan. 2, 2017).

United States ex rel. Ben Ferris v. Afognak - 4 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 11 of 37 Broadly speaking, “[c]oncerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both.” 13 C.F.R. § 121.103(a)(1). Likewise, “[a]ffiliation arises where one or more officers, directors, managing members, or partners who control the board of directors and/or management of one concern also control the board of directors or management of one or more other concerns.” 13 C.F.R. § 121.103(e). Yet, to participate in the 8(a) program, a tribally-owned concern must be owned by the tribe (or a wholly-owned business entity of such tribe), the firm’s

“management and daily business operations” must be controlled by one or more tribal members, and they—or managers that they hire—may oversee two 8(a) participants at time. See 15 U.S.C.

§§ 636(j)(11)(B)(iii), 637(a)(4)(A)(i)(II), 637(a)(4)(B)(ii). Thus, it is no surprise that, in 1990,

Congress amended the Act to clarify that the affiliates of a tribally-owned small business concern are not included in assessing its size for purposes of the 8(a) program:

In determining the size of a small business concern owned by a socially and economically disadvantaged Indian tribe (or a wholly owned business entity of such tribe), each firm’s size shall be independently determined without regard to its affiliation with the tribe, any entity of the tribal government, or any other business enterprise owned by the tribe, unless the Administrator determines that one or more such tribally owned business concerns have obtained, or are likely to obtain, a substantial unfair competitive advantage within an industry category.

Pub. L. 101-574, § 204, 104 Stat. 2819 (Nov. 15, 1990) (codified at 15 U.S.C.

§ 636(j)(10)(J)(ii)(II)); accord 13 C.F.R. § 124.109(c)(2)(iii).9 Unlike other large companies,

ANCs—and, more importantly, their shareholders—may reap the benefits of their subsidiaries’ participation in the 8(a) program.

9 As stated in the legislative history, the impetus for this amendment was the fact that “concurrent tribal ownership of several [8(a)] Program Participants ha[d] sometimes created other eligibility problems in light of SBA’s generally applicable rules regarding ‘affiliation.’” 136 Cong. Rec. S17645-02, 17647 (Oct. 27, 1990).

United States ex rel. Ben Ferris v. Afognak - 5 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 12 of 37 Nevertheless, Afognak does not dispute that each such subsidiary must itself be a “small business concern.” (Mot. at 5-6.) That is, irrespective of the size of its affiliates and notwithstanding its ownership by the ANC, a tribally-owned 8(a) firm must be both “small” within the SBA’s size standards and an independently operated “business concern” within the meaning of the Act. For an ANC to reap the benefits of its subsidiaries’ participation in the 8(a) program, the subsidiaries themselves must bid on the contracts and do the work.

B. Relator alleges that Afognak has misrepresented its subsidiaries’ small business status.

In the present case, Relator contends that Afognak’s 8(a) subsidiaries do not actually bid on the contracts or do the work because they are not operated as legitimate, independent small business concerns. (See generally SAC ¶¶ 4-6.) Instead, they exist in name only, as an elaborate front for their parent’s direct—and illicit—participation in the 8(a) program.

As alleged the Second Amended Complaint, Afognak has over a dozen subsidiaries, each of which purports to be competent in a particular industry, as reflected in that subsidiary’s primary NAICS code.10 (See SAC, ¶¶ 19, 32, 49.) Externally, these subsidiaries are the “small business concerns” that ostensibly bid on, contract for, and perform 8(a) work with their own employees. (See id., ¶¶ 4, 25-29.) Internally, however, the subsidiaries are pure fiction—names on a page. In reality, Afognak has eight industry-based operating divisions that are responsible for performing contracts within their respective areas of expertise. (See id., ¶¶ 40-46.) It is through these divisions that Afognak—an $800 million enterprise (id., ¶ 40)—itself surreptitiously bids on and performs the work with its employees, regardless of which

10 The SBA utilizes the North American Industry Classification System (“NAICS”). This system includes definitions for each business industry and assigns codes to all economic activity within twenty broad sections. See 13 C.F.R. § 121.101.

United States ex rel. Ben Ferris v. Afognak - 6 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 13 of 37 subsidiary’s name appears on the contract (id., ¶¶ 5, 52-54, 67, 75). Afognak tracks and maintains the performance of each contract awarded to its own divisions, not the separate 8(a) business entities to which the government contracts nominally were awarded. (See id., ¶¶ 76-79.)

Externally, each subsidiary has a general manager, who is responsible for that entity’s management and daily operations, and who devotes all the time necessary to the subsidiary as his first priority. (SAC, ¶¶ 50, 64.) Internally, these general managers have no real operational responsibilities for Afognak’s subsidiaries, because the subsidiaries do not actually operate as business concerns. (See id., ¶¶ 51, 57-60.) Instead, the general managers are assigned responsibilities within their respective Afognak divisions, on a contract-by-contract basis, without regard to the 8(a) entity to which the contract was awarded. (See, e.g., id., ¶¶ 61, 65.)

Externally, each Afognak subsidiary has a business plan to grow, develop, and succeed after graduation from the 8(a) program. (See SAC, ¶¶ 33, 70, 130.) Internally, it is Afognak alone that has a plan for growth—its elaborate scheme of organizing sham entities in order to obtain lucrative government contracts for itself, not for its subsidiaries. (See id., ¶¶ 77, 82-83.) From their inception, Afognak’s 8(a) subsidiaries have no prospects for growth beyond the usefulness of their NAICS codes to Afognak and the amount of contract dollars remaining under their

NAICS code caps. (See id., ¶¶ 19, 53.)

Afognak is required to certify in, inter alia, each subsidiary’s application and annual reviews, that the subsidiary qualifies for participation in the 8(a) program. (See generally

SAC, ¶¶ 32-33, 49-50, 63-67.) Based upon the foregoing allegations, Relator contends that

Afognak is liable under the FCA for falsely and/or fraudulently certifying, or causing its subsidiaries to certify, that:

United States ex rel. Ben Ferris v. Afognak - 7 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 14 of 37  Afognak’s 8(a) subsidiaries are separate and distinct small business concerns (see SAC, ¶¶ 38, 91, 140, 145);

 Afognak’s 8(a) subsidiaries would fully perform each contract awarded, consistent with all applicable percentages of work and costs required thereunder (see id., ¶¶ 94, 95, 140, 148);

 the general manager assigned to each subsidiary actually manages the daily operations of that subsidiary, his expertise and background aligns with that particular 8(a) entity’s industry focus, and he devotes all the time necessary to the concern in order for it to achieve its business objectives (see id., ¶¶ 50, 93, 140, 147); and

 Afognak’s 8(a) subsidiaries will pursue contracts that will allow the business to grow, develop, and eventually graduate from the program (see id., ¶¶ 92, 104, 140, 146).

As a result, Afognak “willfully sought and received” each 8(a) contract by misrepresentation. See 15 U.S.C. § 632(w)(1). Indeed, it is the Supreme Court’s Escobar decision—so heavily relied upon by Afognak—that best affirms the viability of Relator’s theory of liability. Specifically, where a party has allegedly perpetrated a scheme to defraud the government in order to obtain funds—here, government contracts—to which it is not entitled, the

FCA is implicated, whether the party has uttered specific misrepresentations or misled through half-truths, and whether the misrepresentations relate to statutory or contractual compliance.

Escobar, 136 S. Ct. at 2000 n.3 and accompanying text. Here, Relator has alleged both false certifications and half-truths implicating both statutory and contractual violations.

C. The only issue before the Court is whether Relator sufficiently has alleged that the misrepresentations were material.

Relator commenced this action under seal, in the United States District Court for the

Northern District of Alabama, on May 30, 2013. (Dkt. #1.) He filed the First Amended

Complaint on June 24, 2013. (Dkt. #6.) Following the government’s notice of declination

(Dkt. #14), Afognak filed its first motion to dismiss on September 30, 2014 (Dkt. #31). In

United States ex rel. Ben Ferris v. Afognak - 8 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 15 of 37 support of dismissal, Afognak relied principally upon the argument that Afognak had not misrepresented its subsidiaries’ eligibility for the 8(a) program “because nothing about the operational structure pled in the Amended Complaint would disqualify [Afognak’s] businesses from participating” in the 8(a) program. (Dkt. #32, Mem. of Law, at 13.) On January 8, 2015, the

Alabama court denied Afognak’s motion in all parts relevant here11 (Dkt. #48), and Afognak subsequently answered the First Amended Complaint on January 30, 2015 (Dkt. #53).

Afognak moved to transfer venue to the United States District Court for the District of

Alaska, which motion the Alabama court granted on August 6, 2015 (Dkt. #101). Thereafter, on

June 16, 2016, the United States Supreme Court issued Escobar. On the purported ground that

Relator’s allegations failed to meet the materiality standard articulated by the Supreme Court,12

Afognak moved on August 17, 2016 for leave to file a motion for judgment on the pleadings.

(Dkt. #189.) In actuality, Afognak’s motion for leave rested upon the same (unsuccessful) argument advanced in its earlier motion to dismiss, namely, that Afognak has not made any misrepresentations because its subsidiaries are, in fact, eligible to participate in the 8(a) program.

Accordingly, on September 28, 2016, this Court denied Afognak’s motion. (See Dkt. #201 at 9.)

Because of “the possibility that Relator has not adequately pleaded the materiality requirement of his FCA claims,” however, the Court ordered Relator to amend his complaint.

(Id.) The Court further ordered that Afognak could move for judgment on the pleadings if, after reviewing the amended complaint, it found Relator’s materiality allegations wanting. (Id.)

11 Although the court concluded that Relator had not sufficiently pled his conspiracy claim (Dkt. #48), Relator subsequently dismissed this claim voluntarily (Dkt. #52). 12 In order to be actionable under the FCA, “a misrepresentation must be material to the Government’s payment decision.” Escobar, 136 S. Ct. at 2002.

United States ex rel. Ben Ferris v. Afognak - 9 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 16 of 37 Relator filed his Second Amended Complaint on October 28, 2016.13 (Dkt. #202.) In lieu of moving for judgment on the pleadings (see Mot. at 1 n.1), Afognak filed its second motion to dismiss on November 28, 2016.14 (Dkt. #212.) The sole basis for Afognak’s second motion to dismiss is its argument that its misrepresentations are immaterial. (See Mot. at 13 n.7.)

III. LEGAL STANDARD

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party. Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008). A complaint should not be dismissed if, when construed in the most favorable light, it contains

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). “A Rule 12(b)(6) analysis addresses the legal sufficiency of a claim, but does not reach its merits or decide the truth of plaintiffs’ factual allegations.” Autodesk, Inc. v.

Dassault Systemes Solidworks Corp., No. C 08-04397 WHA, 2008 U.S. Dist. LEXIS 109800, at

*6-*7 (N.D. Cal. Dec. 18, 2008); accord Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416

F.3d 940, 950 (9th Cir. 2005).

In alleging fraud under Rule 9(b), “the plaintiff must allege ‘the who, what, when, where, and how of the misconduct charged.’ Knowledge, however, may be pled generally.” United

States v. United Healthcare Ins. Co., 832 F.3d 1084, 1101 (9th Cir. 2016) (quoting Ebeid ex rel.

13 As Afognak observes—albeit somewhat derisively—the SAC alleges the same underlying facts as the First Amended Complaint. (Mot. at 9 (“the operative allegations of the [SAC] are virtually identical to the allegations of the prior complaints”).) 14 As an additional related document in support of the instant motion, Afognak filed a request for judicial notice (Dkt. #213), to which Relator contemporaneously is filing a separate response.

United States ex rel. Ben Ferris v. Afognak - 10 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 17 of 37 United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)). The purpose of Rule 9(b) is to afford the defendant notice of the specific conduct it must defend. See Bly-Magee v. California,

236 F.3d 1014, 1018 (9th Cir. 2001).

IV. ARGUMENT

The FCA imposes liability in part on “any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval,” 31 U.S.C. § 3729(a)(1)(A), or “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim,” 31 U.S.C. § 3729(a)(1)(B). “[A] claim under the [FCA] can be false where a party merely falsely certifies compliance with a statute or regulation as a condition to government payment.”15 United States v. United Healthcare Ins. Co., 832 F.3d 1084, 1094 (9th

Cir. 2016) (internal quotation marks omitted); see also Escobar, 136 S. Ct. at 1999 (omissions of

“violations of statutory, regulatory, or contractual requirements . . . can be a basis for liability if they render the defendant’s representations misleading”). Under this theory, the false certification of compliance creates liability when certification is a prerequisite to obtaining a government benefit. United Healthcare, 832 F.3d at 1094. “Implied false certification occurs when an entity has previously undertaken to expressly comply with a law, rule, or regulation, and that obligation is implicated by submitting a claim for payment even though a certification of compliance is not required in the process of submitting the claim.” Ebeid, 616 F.3d at 998.

“The essential elements of a false certification claim are: (1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the

15 There is no distinction between a condition of participation and a condition of payment. United States ex rel. Handal v. Cent. Empl. Training, No. 2:13-cv-01697-KJM-KJN, 2016 U.S. Dist. LEXIS 105158, at *19 (E.D. Cal. Aug. 8, 2016) (citing United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1176 (9th Cir. 2006)).

United States ex rel. Ben Ferris v. Afognak - 11 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 18 of 37 government to pay out money or forfeit moneys due.” Id. (internal quotation marks omitted).

Although Afognak remains unwilling to concede that Relator sufficiently has alleged that

Afognak misrepresents its subsidiaries’ eligibility to participate in the 8(a) program, the sole basis for Afognak’s second motion to dismiss is its argument that its misrepresentations are immaterial. (See Mot. at 13 n.7.) As shown below, however, Relator plausibly has alleged that

Afognak’s misrepresentations had a natural tendency to influence the SBA’s decision to award its subsidiaries lucrative 8(a) work.

A. Afognak’s misrepresentations are material because they have “a natural tendency to influence” the payment or receipt of money or property.

The test for determining materiality in FCA cases is whether the conduct at issue has “a natural tendency to influence, or [is] capable of influencing, the payment or receipt of money or property.”16 Escobar, 136 S. Ct. at 2002 (citing 31 U.S.C. § 3729(b)(4)).

The relators in Escobar filed an FCA action against the parent company of a mental health clinic after their daughter died from an adverse reaction to medication prescribed by a nurse who lacked authority to prescribe medications without supervision. 136 S. Ct. at 1997. The relators alleged that the defendant violated the FCA because its clinic submitted Medicaid reimbursement claims that “made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of regulations pertaining to

16 Congress amended the FCA in 2009 expressly to incorporate this “natural tendency” test, Pub. L. No. 111-21 at § 4, 123 Stat. 1623 (2009), thereby rejecting a more onerous “outcome materiality” standard that some courts had adopted, see United States, ex rel. Longhi v. Lithium Power Techs., Inc., 575 F.3d 458, 470 (5th Cir. 2009). The Supreme Court did not change this definition in Escobar, but rather it “clarified what the word ‘material’ encompasses and does not encompass in cases where the government proceeds on a theory of implied false certification.” United States v. Palin, No. 1:14-cr-00023, 2016 U.S. Dist. LEXIS 111225, at *5 (W.D. Va. Aug. 22, 2016).

United States ex rel. Ben Ferris v. Afognak - 12 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 19 of 37 staff qualifications and licensing requirements for these services.” Id. at 1997-98. The district court dismissed the relators’ complaint on the ground that the regulations at issue imposed only conditions of participation in the Medicaid program, not preconditions to payment. Id. at 1998.

The First Circuit reversed, finding that the regulations at issue were conditions of payment. Id.

Holding that FCA liability for failing to disclose regulatory violations does not turn upon their designation as conditions of payment, the Supreme Court vacated the First Circuit’s decision. Escobar, 136 S. Ct. at 1996. In doing so, the Supreme Court rejected the defendant’s argument that a statutory, regulatory, or contractual requirement is not material unless expressly designated as a condition of payment. See id. at 2001. By the same token, however, a misrepresentation is not material merely because the government designates compliance with a particular requirement as a condition of payment or because the government would have the option to decline to pay if it knew of the defendant’s noncompliance. See id. at 2003.

Instead, noting that the materiality requirement derives from the common law, the

Supreme Court explained that there are two, alternate methods by which materiality can be established—one objective (a reasonable person test), the other subjective (i.e., from the perspective of the defendant). Specifically, a matter is material in either of the following two circumstances:

(1) “[if] a reasonable [person] would attach importance to [it] in determining his choice of action in the transaction”; or

(2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter “in determining his choice of action,” even though a reasonable person would not.

United States ex rel. Ben Ferris v. Afognak - 13 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 20 of 37 Escobar, 136 S. Ct. at 2002-2003 (emphasis added) (quoting Restatement (Second) of Torts

§ 538, at 80 (1977)); accord United States, ex rel. Miller, 840 F.3d 494, 2016 U.S. App. LEXIS

18758, at *16 (8th Cir. Oct. 19, 2016).

In either case, “materiality cannot rest on a single fact or occurrence as always determinative.” Escobar, 136 S. Ct. at 2001 (internal quotation marks omitted). Instead, as the

First Circuit recently explained on remand in Escobar, “courts are to conduct a holistic approach to determining materiality in connection with a payment decision, with no one factor being necessarily dispositive.”17 United States, ex rel. Escobar v. Universal Health Servs. (“Escobar

(remand)”), 842 F.3d 103, 2016 U.S. App. LEXIS 21072, at *14-*15 (1st Cir. Nov. 22, 2016).

The Supreme Court identified several factors that may bear upon materiality. As summarized by one amicus curiae, these include:

whether the violation is “garden-variety” or “minor or insubstantial,” Escobar[], 136 S. Ct. at 2003; whether the violation is significant, id. at 2004; whether it involves “core” or “basic” requirements, or “critical facts,” id. at 2000-2001; whether the violation goes to the “essence of the bargain,” id. at 2003 n.5 (citation omitted); or whether and what actions the Government took where it had actual knowledge of the same or similar violations, id. at 2003-2004.18

Applying this holistic approach, the First Circuit concluded that the relators in Escobar ultimately had alleged the materiality of the regulations at issue in that case for three reasons.

First, compliance with the regulations “was a condition of payment—itself a ‘relevant’ though

‘not dispositive’ factor in determining materiality.” Escobar (remand), 2016 U.S. App. LEXIS

17 In this regard, Afognak is wrong that “Relator must show . . . that the government denies eligibility or refuses to pay for violations of the particular regulation in question.” (Mot. at 20 (emphasis omitted).) This approach would effectively convert Escobar’s natural tendency test into the outcome materiality test rejected by Congress. (See supra note 16.) 18 See Suppl. Br. for Amicus Curiae Taxpayers Against Fraud Educ. Fund, United States, ex rel. Escobar v. Universal Health Servs., No. 14-1423, at 7 (1st Cir. Aug. 22, 2016).

United States ex rel. Ben Ferris v. Afognak - 14 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 21 of 37 21072, at *17 (quoting Escobar, 136 S. Ct. at 2001). Second, the regulations went to the “‘very essence of the bargain’” of the government’s contractual relationship with the clinic under the

Medicaid program. Id. (quoting Escobar, 136 S. Ct. at 2003 n.5). “And third, while the Supreme

Court observed that ‘if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material,’. . . the Court did not state that such knowledge is dispositive.” Id.

(quoting and citing Escobar, 136 S. Ct. at 2003-04). Moreover, there was no evidence in “the factual allegations in the [complaint]” that the government paid such claims “despite actual knowledge of the violations.” Id. at *21.

The crux of Relator’s claim in this action is that Afognak has misrepresented the small business status of its subsidiaries. Contrary to Afognak’s express certifications, its subsidiaries are not 8(a)-eligible small businesses because they are not independently operated “separate business entities” (see SAC, ¶¶ 38, 91, 140, 145), do not do their own work (see id., ¶¶ 94, 95,

140, 148), do not have their own managers (see id., ¶¶ 50, 93, 140, 147), and do not pursue contracts for purposes of achieving their own viability (see id., ¶¶ 92, 104, 140, 146). For the reasons that follow, these misrepresentations are material under both the objective and subjective tests set forth in Escobar.19

1. A reasonable person would attach importance to Afognak’s misrepresentations.

Construing Relator’s allegations in the light most favorable to him, a reasonable person would attach importance to Afognak’s representations regarding its subsidiaries’ small business

19 Tellingly, Afognak altogether ignores Escobar’s objective standard. Its attack on the subjective test is refuted infra, in Parts IV.A.2 and IV.B.

United States ex rel. Ben Ferris v. Afognak - 15 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 22 of 37 status in deciding whether to allow Afognak’s subsidiaries to participate in the 8(a) program for at least three reasons.

First, Afognak does not dispute that a business owned by an ANC is required to qualify as a small business for purposes of participating in the 8(a) program. (Mot. at 5-6; see also

SAC, ¶ 110 (citing 13 C.F.R. §§ 124.102, 124.109(c)(2)). Being an 8(a) participant, in turn, is a prerequisite to receiving an 8(a) contract.20 (SAC, ¶ 109 (citing 13 C.F.R. § 124.501(g)).

Moreover, the SBA terminates 8(a) participants for submitting false information and failing to maintain their eligibility. (SAC, ¶¶ 127, 129.) “While conditioning is not ‘automatically dispositive’ of materiality, it is ‘relevant’ to materiality.” Miller, 2016 U.S. App. LEXIS 18758, at *18-*19 (quoting Escobar, 136 S. Ct. at 2003); see, e.g., Escobar (remand), 2016 U.S. App.

LEXIS 21072, at *17 (including allegation that regulatory compliance was a condition of payment among three reasons for concluding that alleged misrepresentations were material).

Second, being a “small business concern” is a “core” or “basic” requirement that goes to the “very essence” of the 8(a) program. See Escobar, 136 S. Ct. at 2003 n.5. Since its inception, the purpose of the 8(a) program has been to provide “the maximum practicable opportunity for the development of small business concerns owned by members of socially and economically disadvantaged groups” by “clarify[ing] and expand[ing] the program for the procurement by the

United States of articles, equipment, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.” See

20 “In assessing the materiality element, the court looks at whether ‘the statutory requirements are causally related to [the government's] decision to pay out moneys due.’” Handal, 2016 U.S. Dist. LEXIS 105158, at *19-*20 (quoting Hendow, 461 F.3d at 1175).

United States ex rel. Ben Ferris v. Afognak - 16 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 23 of 37 Pub. L. No. 95-507, § 201, 92 Stat. 1760-61 (Oct. 24, 1978) (emphases added) (codified at 15

U.S.C. §§ 631(f)(1)(E), 631(f)(2)(C)).

Third, far from constituting “garden-variety” breaches of contract or “minor or insubstantial” regulatory violations, see Escobar, 136 S. Ct. at 2003, Afognak’s violations are widespread and significant. The very reason Afognak organized multiple limited liability companies is to “cheat” the 8(a) system. (See SAC, ¶ 55.) Beyond the record-keeping required to perpetuate its scheme, however, the fact that its subsidiaries exist on paper changes virtually nothing about how Afognak does business—as a single, large company.

2. Even if a reasonable person would not attach importance to Afognak’s misrepresentations, Afognak knew or had reason to know that the government did.

Irrespective of whether a reasonable person would attach importance to Afognak’s representations regarding its subsidiaries’ small business status, Afognak knew or should have known that they mattered to the government. At least three additional points compel this conclusion.

First, in 2010, Congress adopted the presumed loss rule, which provides in relevant part that “presumption of loss to the United States based on the total amount expended . . . whenever it is established that a business concern other than a small business concern willfully sought and received the award by misrepresentation.” See 15 U.S.C. § 632(w)(1); see also 13 C.F.R.

§ 121.108(b)(1) (deeming submission of bid for small business set-aside contract an “affirmative, willful and intentional certification[] of small business size and status”). Although the Act always has provided sanctions for misrepresentation of small business status, the Court of

Federal Claims had limited the damages recoverable under the FCA for misrepresentation of small business status when the misrepresenting contractor fully performed the contract to the

United States ex rel. Ben Ferris v. Afognak - 17 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 24 of 37 government’s satisfaction. See Ab-Tech Constr. v. United States, 31 Fed. Cl. 429 (Fed. Cl. 1994), aff’d, 57 F.3d 1084 (Fed. Cir. 1995). Thus, the evident purpose of the presumed loss rule was to reinvigorate enforcement of small business status, which is a clear indication of importance.21

Second, in addition to Relator’s admonitions (see supra note 21), Afognak received direct notice from the government both that failing to maintain program eligibility—including small business status—could result in termination from the 8(a) program (SAC, ¶ 134) and that

8(a) participants may not share managers and employees (id., ¶ 121). Indeed, the SBA rejected at least one Afognak application precisely because it included an intercompany agreement that provided for sharing more than merely “administrative” services. (Id., ¶ 114.) Although Afognak is quick to aver that the same business concern is now an 8(a) participant—a fact not in the record—that’s because Afognak revised the agreement. (See id., ¶ 115).

Third, “[p]roof of materiality can include, but is not necessarily limited to, evidence that the defendant knows that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement.” Escobar, 136 S. Ct. at 2003. Here, Relator alleges that the government denies 8(a) applications for business concerns that are “other than small” (SAC, ¶ 117), concerns that are controlled by individuals without relevant managerial experience or who commit insufficient time to the entity (id., ¶¶ 120, 122), and concerns that fail to show reasonable prospects for success in competing in the private sector (id., ¶ 125). Moreover, the government terminates 8(a) participants for submitting false information (id., ¶ 127), failing to maintain program eligibility

21 There is no question that Afognak knew about the presumed loss rule, given that Relator immediately expressed his concerns about Afognak’s operating model to Afognak’s senior management upon learning about it. (SAC, ¶¶ 37-39.)

United States ex rel. Ben Ferris v. Afognak - 18 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 25 of 37 (id., ¶ 129), failing to make substantial and sustained efforts to obtain business (id., ¶ 131), and failing to comply with applicable percentage of work requirements (id., ¶ 132).

B. Relator sufficiently has alleged Afognak’s material misrepresentations.

Afognak’s response is that “Relator’s allegations are mismatched: Relator alleges the materiality of regulatory violations that he has not claimed . . . without pleading any facts demonstrating materiality for the regulatory violations that he does purport to claim.” (Mot. at 1

(emphases omitted).)

In part for the same reason that it lost its first motion to dismiss, this argument is specious. Thumbing its nose at the implied false certification theory, for example, Afognak continues to insist that its statements were technically true. (See, e.g., Mot. at 15 (“[Afognak’s]

8(a) Participants are for-profit limited liability companies, which is all that is required.”).)

Escobar, however, makes clear that “half-truths—representations that state the truth only so far as it goes, while omitting qualifying information—can be actionable misrepresentations.”

Escobar, 136 S. Ct. at 2000. Yes, Afognak’s subsidiaries are small businesses on paper.

But Afognak knew or should have known that the SBA would also find it important that they do not operate as separate and distinct concerns; otherwise, this requirement would be meaningless.

As discussed above, see supra Part IV.A., Escobar makes clear that the materiality inquiry requires a holistic assessment of the tendency or capacity of the undisclosed violation to affect the government’s decision. Just as this case does not involve an isolated violation of any one rule, the question is not whether the violation of any one rule would be material. See

Escobar, 136 S. Ct. at 2001 (“materiality cannot rest on a single fact or occurrence as always determinative” (internal quotation marks omitted)). Instead, the question is whether, taken together, Afognak’s misrepresentations have “a natural tendency to influence” the SBA’s

United States ex rel. Ben Ferris v. Afognak - 19 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 26 of 37 decision to accept its subsidiaries into the 8(a) program and award them lucrative 8(a) contracts.

A side-by-side comparison of Afognak’s core misrepresentations and the corresponding SBA decisions cited by Relator show that a reasonable jury could conclude that they do:

Misrepresentation Government Action

Afognak’s 8(a) subsidiaries are not operated The government denies 8(a) applications for as separate and distinct small business business concerns that are “other than small.” concerns. (See SAC, ¶¶ 38, 91, 140, 145.) (Id., ¶ 117.)

Afognak’s 8(a) subsidiaries do not have The government denies 8(a) applications for individuals—expert or otherwise—who concerns that are controlled by individuals actually devote time to day-to-day without relevant managerial experience or management. (See id., ¶¶ 50, 93, 140, 147.) who commit insufficient time to the entity. (Id., ¶¶ 120, 122.)

Afognak’s 8(a) subsidiaries do not pursue The government denies 8(a) applications for contracts for purposes of the subsidiaries’ concerns that fail to show reasonable own growth and development. (See id., prospects for success and terminates ¶¶ 92, 104, 140, 14.) participants that fail to make substantial and sustained efforts to obtain business. (Id., ¶¶ 125, 131.)

Afognak’s 8(a) subsidiaries do not comply The government terminates 8(a) participants with applicable percentages of work and costs for failing to comply with applicable requirements. (See id., ¶¶ 94, 95, 140, 148.) percentage of work requirements. (Id., ¶ 132.)

Each misrepresentation is addressed in turn.

1. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries are separate and distinct small business concerns.

As noted above, Afognak recycles its argument that Relator’s claim is not plausible because its 8(a) subsidiaries “are for-profit limited liability companies, which is all that is required.” (Mot. at 15; compare id., with Defs.’ 1st MTD at 14-15 (“[E]ach subsidiary was ‘a separate and distinct legal entity’; indeed, [Relator] admits that each business existed ‘on paper.’. . . That is all the program rules require.” (emphasis in original) (citation omitted)).) Put

United States ex rel. Ben Ferris v. Afognak - 20 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 27 of 37 another way, Afognak’s position is that it may operate as a single, unified entity, so long as it files the necessary paperwork to organize a gaggle of LLCs, whose names appear on 8(a) applications and 8(a) bids and 8(a) participation agreements and 8(a) contracts and government checks but do not actually do anything themselves. If Afognak is correct, then it is the 8(a) program that’s a sham.

This cannot be the law. Congress opened up the 8(a) program to small business concerns owned by ANCs—not ANCs themselves. As such, the rules require that a tribally-owned 8(a)

“applicant or participating concern must be a separate and distinct legal entity organized or chartered by the tribe, or Federal or state authorities.” 13 C.F.R. § 124.109(c)(1); accord

15 U.S.C. § 632(a)(1). Interpreting the “separate and distinct” requirement in the manner

Afognak suggests—that is, merely that each entity must exist on paper—would eviscerate the rule. There would be no reason to require ANCs to organize separate and distinct subsidiaries if the subsidiaries were not actually required to operate as separate and distinct subsidiaries.

Even assuming that Relator is correct, Afognak argues that he has not sufficiently alleged the materiality of its “separate subsidiary” misrepresentation because he has not shown that “the government denies admission or declines payment to ANCs organized as [Afognak] [is] organized.” (Mot. at 21-22.) Again, however, materiality requires a holistic assessment of the tendency or capacity of the undisclosed violation to affect the government’s decision. Escobar

(remand), 2016 U.S. App. LEXIS 21072, at *14-*15. The fact that no other ANC has been caught doing precisely the same thing does not make Afognak’s scheme immaterial. See id. at *21 (rejecting similar argument, given absence of evidence that government “continued to pay claims despite actual knowledge of the violations”).

United States ex rel. Ben Ferris v. Afognak - 21 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 28 of 37 On the ground that each ANC subsidiary’s size must be determined independently,

Afognak also maintains that “it is irrelevant whether the SBA terminates or denies admission to businesses that are ‘other than small.’” (Mot. at 16-17.) But if Relator is correct that Afognak’s subsidiaries are not separate and distinct small business concerns to begin with, then the relevant entity for size purposes is Afognak itself.

2. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries do their own work as separate and distinct small business concerns.

Afognak does not dispute that the government terminates 8(a) participants that fail to comply with the requirement that a participant firm must perform 50 percent of an 8(a) contract if the contract is for services, supplies or products. (SAC, ¶ 132.) Instead, Afognak continues to maintain that—in purported contrast to the example alleged by Relator (see id.)—it did not violate this rule because Relator’s allegation that Afognak’s employees, rather than its subsidiaries’ employees, performed the work is tantamount to saying “that Defendants passed on

8(a) work to themselves.” (See Mot. at 22-23; compare id., with Defs.’ 1st MTD at 17 (“ANC- owned 8(a) subsidiaries may lease employees to satisfy any percentage of work requirements.”).)

Specifically, Afognak cites a May 31, 2016 final rule for the proposition that “subcontracts to

‘similarly situated’ entities do not count towards subcontracting limits (formerly percentage of work limits).” (Mot. at 23 (emphasis added).)

This rule does not help Afognak. It defines a “similarly situated entity” as “a subcontractor that has the same small business program status as the prime contractor. 13 C.F.R.

§ 125.1 (emphasis added). Thus, “[f]or an 8(a) requirement,” the subcontractor must be “an 8(a) certified Program Participant.” Id.; see also 81 Fed. Reg. 34243, 34244 (May 31, 2016) (“The

Government’s policy of promoting contracting opportunities for small businesses . . . is seriously

United States ex rel. Ben Ferris v. Afognak - 22 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 29 of 37 undermined when firms pass on work in excess of applicable limitations to firms that are other than small . . . .”). The very point of Relator’s claim is that Afognak—the company actually doing the work—is other than small. It is not, nor could it be, an 8(a) participant.22

3. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries are managed as separate and distinct small business concerns.

Afognak does not dispute that “the SBA denies 8(a) applications for business concerns that ‘fail to show that they are controlled through individuals with managerial experience of the extent and complexity needed to run the concern.’” (See Mot. at 17 (quoting SAC, ¶ 120).)

Instead, Afognak contends that “Relator does not plead that [it] violated any requirement that management have sufficient knowledge and expertise,” on the ground that the pertinent regulation, 13 C.F.R. § 124.109(c)(4), “requires only that the ANC control and manage the business, either directly or indirectly.” (Mot. at 18 n.8 and accompanying text.)

To the contrary, § 124.109(c)(4) expressly provides that a “Tribally-owned concern may be controlled by the Tribe through one or more individuals who possess sufficient management experience of an extent and complexity needed to run the concern . . . .” 13 C.F.R.

§ 124.109(c)(4)(i). That is how Afognak purported to run its subsidiaries. But it turns out that there was nothing to run.

Section 124.109(c)(4) further provides that 8(a) managers “are precluded from engaging in any outside employment or other business interests which conflict with the management of the

22 In this regard, Afognak’s attempt to distinguish In re Reality Technologies, Inc., SBA No. BDPT-488, 2013 WL 215002 (May 3, 2013)—Relator’s example of a case in which the SBA terminated an 8(a) firm for failing to comply with the percentage of work requirement (SAC, ¶ 132)—is without merit. (See Mot. at 22.) Afognak is no more “similarly situated” than the non-disadvantaged firm involved in that case.

United States ex rel. Ben Ferris v. Afognak - 23 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 30 of 37 concern . . . .” 13 C.F.R. § 124.109(c)(4)(ii). According to Afognak, Relator does not allege that its general managers “were engaged in such outside employment.” (Mot. at 18.) But the SBA itself made it clear that outside activities “include involvement in the ANC” and “holding companies.” (SAC, ¶ 121.) That is exactly what Relator alleges in this case—that Afognak’s general managers do not actually manage their subsidiaries, but rather work exclusively for their respective Afognak operating divisions. (See id., ¶¶ 51, 57-60, 61, 65.) The SBA has denied 8(a) program admission for misrepresentations involving similar rules applicable to non-ANCs. (See

SAC, ¶ 122.) Afognak offers no reason to think that ANCs should be treated differently.

4. Relator has alleged a material misrepresentation regarding whether Afognak’s 8(a) subsidiaries pursue growth and development as separate and distinct small business concerns.

Afognak argues that Relator pleads no facts showing that its 8(a) participants represent that they will pursue business in accordance with their business plans and that he does not allege that Afognak misrepresented their prospects for success. (See Mot. at 19, 21.) To the contrary, each entity’s business plan is an integral part of its application and annual reviews. (See SAC,

¶¶ 33, 63, 70.) The business plan must contain, among other things, the subsidiary’s “[s]pecific targets, objectives, and goals for the business development.” 13 C.F.R. § 124.402(c). During the transitional stage of the 8(a) program—beginning in the fifth year—the business plan must also describe “[t]he specific steps the Participant intends to take to continue its business growth and promote profitable business operations after the expiration of its program term.” 13 C.F.R.

§ 124.403(c)(2). Afognak’s business plans are false because its subsidiaries do not intend to grow and develop in their own right. They have no prospects for success beyond their usefulness to their parent. (See SAC, ¶ 125.)

United States ex rel. Ben Ferris v. Afognak - 24 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 31 of 37 Afognak also argues that “Relator pleads no evidence that the SBA in fact denies eligibility or the government refuses to pay 8(a) participants that fail to pursue business in accordance with their business plans.” (Mot. at 19.) To the contrary, in In re Sparccom &

Assocs., SBA No. BDPT-501, 2013 WL 4502314, at *1 (Aug. 19, 2013), the SBA terminated an

8(a) participant “for failure to pursue competitive and commercial business or failure in other ways to make reasonable efforts to develop and achieve competitive viability.” (See SAC,

¶ 131.) Afognak insists that, “at most, Sparccom supports an argument that the SBA may terminate an 8(a) participant for a complete failure to pursue business.” (Mot. at 19.) But nothing in the SBA’s decision suggests that it intended to limit Sparccom in this manner. In any event,

Afognak is incorrect that “Relator makes no such allegation” regarding its own 8(a) subsidiaries.

(Id. at 19-20.) As discussed above, Afognak’s subsidiaries do not pursue any business in their own right; they are mere conduits for Afognak.

C. There is no evidence that the government has actual knowledge of Afognak’s violations.

Finally, Afognak contends that Relator does not claim that the government has terminated or denied admission to any of its 8(a) participants, despite the fact that Relator notified the government of his claims more than three years ago. (Mot. at 13.) But there is no evidence that the government continued to pay claims despite actual knowledge of Afognak’s violations. See Escobar (remand), 2016 U.S. App. LEXIS 21072, at *21 (“mere awareness of allegations concerning noncompliance with regulations is different from knowledge of actual noncompliance”); see also Rose v. Stephens Inst., No. 09-cv-05966-PJH, 2016 U.S. Dist. LEXIS

128269, at *17 (N.D. Cal. Sept. 20, 2016) (finding government’s decision not to take action against defendant despite awareness of allegations “not terribly relevant to materiality”). To the

United States ex rel. Ben Ferris v. Afognak - 25 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 32 of 37 contrary, Relator’s allegations—accepted as true, as they must be “for purposes of evaluating a

12(b)(6) motion,” see Escobar (remand), 2016 U.S. App. LEXIS 21072, at *21—are firmly grounded in the government’s lack of knowledge, which is why Afognak’s lies had a tendency to influence government decisions. (See, e.g., SAC, ¶¶ 100-102.)

On this point, Afognak misplaces its reliance upon GAO reports from 2006 and 2012.23

(Mot. at 14, 25.) Far from blessing Afognak’s operating model, the GAO expressed concern about ANC subsidiaries coordinating with one another and sharing administrative services.

(See, e.g., 2006 GAO Report at 32.) Afognak’s conduct transcends these practices. Its subsidiaries do not merely work in concert or have overlapping capabilities (see id. at 28); they operate as a single, unified business. Indeed, Relator alleges that Afognak was an outlier if not the only ANC operating in this manner. (See SAC, ¶ 56.) The fact that one unidentified ANC firm reportedly leveraged the expertise and management of other subsidiaries (Mot. at 25 (citing

2006 GAO Report at 28)), does not suggest—let alone, endorse—Afognak’s approach.24 To the contrary, “SBA expects that, when it accepts multiple firms under the same tribal entity into the

8(a) program, each firm will operate and grow independently, in line with the business

23 U.S. Gov’t Accountability Office, GAO-06-399, Contract Management: Increased Use of Alaska Native Corporations’ Special 8(a) Provisions Calls for Tailored Oversight (2006) (“2006 GAO Report”) and U.S. Gov’t Accountability Office, GAO-12-84, Federal Contracting: Monitoring and Oversight of Tribal 8(a) Firms Need Attention (2012) (“2012 GAO Report”), attached as Exhibits A and B to Dkt. #214, Decl. of Angela R. Jones in Supp. of Defs.’ Mot. to Dismiss.) 24 It bears noting, moreover, that the SBA promulgated regulations in 2011 that were intended to rein in the abuses identified in the GAO’s 2006 report. For example, the 2011 rules restrict the ability of newly certified ANC-owned 8(a) firms to receive set-aside contracts that are “follow-on” contracts to an 8(a) contract that was performed by a sister subsidiary. See 76 Fed. Reg. 8222, 8256 (Feb. 11, 2011) (codified at 13 C.F.R. § 124.109(c)(3)(ii)).

United States ex rel. Ben Ferris v. Afognak - 26 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 33 of 37 development purposes of the program.” (2012 GAO Report at 36 (emphasis added).) At most, the GAO’s reports reveal a disputed issue of fact, but that is no basis for dismissal.

Even if there were evidence that the government had some knowledge of Afognak’s violations, the fact that the government may continue to pay even after discovering wrongdoing does not, in and of itself, establish lack of materiality. See, e.g., United States ex rel. Am. Sys.

Consulting v. ManTech Advanced Sys. Int’l, 600 Fed. Appx. 969, 977 (6th Cir. 2015) (“[w]hen the government discovers misrepresentations . . . a subsequent decision not to terminate may weigh against a finding of materiality, but it is not always dispositive”); United States ex rel.

Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 917 (4th Cir. 2003) (“we can foresee instances in which a government entity might choose to continue funding the contract despite earlier wrongdoing by the contractor”). Holding otherwise would effectively reinstate the government knowledge defense, which Congress abolished in 1986. Pub. L. No. 99-562, 100.

Stat. 3153 (Oct. 27, 1987).

Although it is possible that, “at the summary judgment stage or after trial, the extent and the nature of government knowledge may show that the defendant did not ‘knowingly’ submit a false claim,”25 it is well settled that, after 1986, “the government’s knowledge of the underlying facts is not automatically a complete defense when that knowledge appears only as an allegation on the face of a complaint . . . .” Hooper v. Lockheed Martin Corp., 688 F.3d 1037, 1051 (9th

Cir. 2012) (internal quotation marks omitted); see, e.g., United States ex rel. Jordan v. Northrop

Grumman Corp., No. CV 95-2985 ABC, 2002 U.S. Dist. LEXIS 26674, at *62 (C.D. Cal. Aug.

25 Whether the government’s knowledge demonstrates that the contractor did not submit its claim in deliberate ignorance or reckless disregard of the truth “is a fact-specific inquiry that requires the court to draw inferences from evidence in the record.” Berg v. Honeywell Int’l, Inc., 580 Fed. App’x 559, 560 (9th Cir. 2014).

United States ex rel. Ben Ferris v. Afognak - 27 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 34 of 37 5, 2002) (distinguishing cases that involved “situations where the Government had received full disclosure of the specific facts underlying the particular claim prior to submission of that claim”

(emphasis added)).

Moreover, part of the impetus for the 1986 amendment was a GAO report critical of government oversight. The GAO had found that “most fraud goes undetected due to the failure of Governmental agencies to effectively ensure accountability on the part of program recipients and Government contractors.” S. Rep. No. 99-345, at 3 (1986), reprinted in 1986 U.S.C.C.A.N.

5266, 5268 (emphasis added). Here, the GAO reports upon which Afognak relies focused on the

SBA’s lax oversight. (See, e.g., 2006 GAO Report at 7 (listing examples of “where SBA’s oversight has fallen short”) id. at 33-34 (reporting that Alaska district office officials “were having difficulty managing their large volume and the unique type of work in their 8(a) portfolio”); 2012 GAO Report at 46 (“SBA officials look at individual firms during annual reviews, but do not consider the consequences of their interconnectedness with sister subsidiaries and the parent company”).) Thus, the SBA’s apparent ineffectiveness only serves to underscore the importance of Relator’s claim. See Matthew C. Stephenson, Public Regulation of Private

Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93,

110 (2005) (“Another potential benefit of private enforcement suits is that they can correct for agency slack—that is, the tendency of government regulators to underenforce certain statutory requirements because of political pressure, lobbying by regulated entities, or the laziness or self- interest of the regulators themselves.”).

V. CONCLUSION

In sum, Relator sufficiently has alleged that Afognak knew or had reason to know that the government would find it important that Afognak’s 8(a) subsidiaries are not operated as separate

United States ex rel. Ben Ferris v. Afognak - 28 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 35 of 37 and distinct small business concerns (see SAC, ¶¶ 38, 91, 140, 145); do not comply with applicable percentages of work and costs requirements (see id., ¶¶ 94, 95, 140, 148); do not have individuals—expert or otherwise—who actually devote time to day-to-day management (see id.,

¶¶ 50, 93, 140, 147); and do not pursue contracts for purposes of the subsidiaries’ own growth and development (see id., ¶¶ 92, 104, 140, 146). Accordingly, the Court should deny Afognak’s motion to dismiss.

Dated: January 3, 2017 Respectfully submitted,

By: /s/ William H. Narwold John P. Cashion William H. Narwold (Alaska Bar No. 9806025) Mathew P. Jasinski [email protected] Michael J. Pendell CASHION GILMORE LLC Laura W. Ray 1007 W. 3rd Ave., Suite 301 MOTLEY RICE LLC Anchorage, AK 99501 20 Church St., 17th Floor Tel.: (907) 222-7936 Hartford, CT 06103 Fax: (907) 222-7938 Tel.: (860) 882-1681 [email protected] Fax: (860) 882-1682 [email protected] [email protected] [email protected] [email protected]

Sarah M. Frazier Charles H. Rabon, Jr. BERG & ANDROPHY RABON LAW FIRM, PLLC 3704 Travis St. 225 E. Worthington Ave., Ste. 100 Houston, TX 77002 Charlotte, NC 28203 Tel: (713) 529-5622 Tel.: (704) 247-3247 Fax: (713) 529-3785 Fax: (704) 208-4645 [email protected] [email protected]

Counsel for Relator Ben Ferris

United States ex rel. Ben Ferris v. Afognak - 29 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 36 of 37 CERTIFICATE OF SERVICE

I certify that on January 3, 2017, the foregoing was filed with the Court’s electronic filing system which served a copy on all counsel of record.

By: /s/ William H. Narwold William H. Narwold MOTLEY RICE LLC 20 Church St., 17th Floor Hartford, CT 06103 Tel.: (860) 882-1676 Fax: (860) 882-1682 [email protected]

United States ex rel. Ben Ferris v. Afognak - 30 - Native Corp, et al.; 3:15-cv-00150-HRH Case 3:15-cv-00150-HRH Document 218 Filed 01/03/17 Page 37 of 37