Lawyers for Verizon fumed over a Washington judge's ruling in February that awarded a whistleblower tens of millions of dollars for exposing the company's alleged attempt to bilk the government.
The substance of the judge's ruling—giving a whistleblower a bigger cut of the government's recovery for his role in the case—didn't upset Verizon’s counsel at Wilmer Cutler Pickering Hale and Dorr.
Rather, the Wilmer attorneys claimed U.S. District Judge Gladys Kessler took liberty in describing the suit in a way that could be read as a Verizon concession of guilt. Verizon settled the False Claims Act suit in April 2011 for $93.5 million. The company expressly denied the allegations.
“Verizon is concerned that some of those statements may be perceived to indicate that the court made factual and legal findings regarding disputed and unresolved factual and legal issues related to Verizon’s intent and conduct,” Wilmer partners Randolph Moss and Jennifer O’Connor said in court papers (PDF) filed last month.
Moss and O’Connor said Kessler’s ruling (PDF) “may be quite damaging to Verizon.” The company’s attorneys asked the judge to amend her decision. Neither the Justice Department nor the whistleblower, Stephen Shea, submitted a response to Verizon's request.
Last week, Kessler changed several phrases in her original 24-page decision. But Kessler didn't give Verizon everything it wanted. The judge's March 29 order is here (PDF).
Kessler said in her original opinion that “it is certainly more than likely” that without Shea's suit, Verizon would have “continued to overcharge the United States indefinitely, i.e., as long as it could get away with it.”
Kessler replaced “it is certainly more than likely” with “it may well be that.”
The judge in her original opinion said the government “saved what would clearly have been continuing overcharges.” Kessler amended that language, changing “would clearly” to “may well.”
Kessler included a footnote at the bottom of the revised ruling that, for the purposes of her order and opinion, she assumed the whistleblower’s facts to be true since the Justice Department did not contest them. (The judge today declined to comment on her ruling.)
But the judge refused to adopt wholesale certain language that Verizon wanted.
Verizon's lawyers, for instance, had asked Kessler to include this line: "The opinion contains no findings of fact or law in respect to the underlying allegations in the dismissed complaint because the case was settled prior to substantive motions or trial."
Kessler's original ruling in February came amid a dispute between the Justice Department and Shea's attorneys at Phillips & Cohen over how much money the government should share with the whistleblower.
DOJ downplayed the role Shea played in exposing the alleged Verizon fraud. Kessler ruled for Shea, saying that the government presented a "profoundly unfair characterization of the nature and extent of the expertise, experience, knowledge, analysis and just plain hard work that Shea, and his lawyers, contributed to this litigation."