we do not have to identify specific individuals what the needs of these nine defendants companies are and any not at any point not in any point in the litigation if it goes forward will certainly want to have the benefit of discovery wall will be able to make clearer factual allegations certainly information about the personnel at each of these defendants companies over the the multi year period that we've elected this fraud occurred as information employees may have changed over that they'd be years we'd be maybe talking about different departments but then each of these dependent companies and i related does not have that that level of information but that that information should be gleaned once we get into this country and certainly at that point we will be able to identify who those individuals are or were and what my question is was that you're going to have to  disregard and here with with respect to identifying particular individuals within each company who had actual knowledge that seems to to only invoke the the actual knowledge tristan's are and so so here we have an issue where where individuals may have recklessly disregarded whether or not their respective companies representations to the united states of america were false it's nearly one thing after if the case goes forward you will have to will you not hi jennifer i wonder more persons within each of the or you may never have to what exactly are you saying the false claims act doesn't doesn't require relator is or even the government for that matter any plaintiff to identify individual employees of a defendant simply by by asserting which defendants companies engaged in the fraud and here we have multiple defendants and so certainly the onus is on us to to differentiate the conduct committed by each of those defendants but the false claims act does not require that we that we provide the level of granularity by by asserting which individual employees which which may have have been multiple employees involved over the course of knowledge of not only the company's responsibilities to to provide only t a a compliant products to the government the fact that the companies were not in fact doing so as well as that their certifications to the government there but invoices that the district courts this report certainly went too far in requiring that level of pleading both because related doesn't have access that information and so a reduced or more lenient  a level of granularity simply to provide notice so the defendants here we have alleged be representative examples of of thousands of products that were sold accounting for millions of dollars in sales by each defendant  i'm trying to understand why this is fraud as opposed to a breach of contract what what was the what was hooked government defrauded out of what money was was improperly obtained as a result of this fraud all of the money for for all sales of products that originated in noncompliance for ninety eight compliant countries the federal government  for some four years now has has maintained under the trade agreements that that the united states is not trade with certain countries including countries like china or malaysia and so when a defendant company sells products to the government under the guise of t a a compliance the government has been defrauded and that's the purposes of the t a a have been undermined so the full value of the contract even though the government got not complying countries when you're in fact believed that it was receiving products from the u s certainly it shouldn't have to listen i mean there should be compliance with the t s a but is is that fraud where they with a  certification that whether i mean it is the certification itself show fraud as opposed to a breach of a country yes it's a it's a fraud because a misrepresentation is being made and here we have both been expressed misrepresentation as well as lifeboats representations at the at the outset of each of these defendants contracting process with the g s a they were required to submit express certifications that they were only provide the government longer a source of will from a doesn't mean the country these dependents agree that they would notify the government of any discrepancies with their products and so that's really the continuing obligation with each of these defendants through the point of sale and delivery to certification that's made at the contract outset and supported by the far provision that makes clear that the government contracting officer will continue to rely on that initial representation unless told otherwise in addition  defendant has made this initial promise to the government has to do in fact we will let you know even up to the point of sale if there's any issue with any of our products and there's a far provision that it makes explicit that the government will continue to function of rule line b in what sense does a complaint leave your clients in the dark i mean can can the defendants use the exhibits attached the complaint tracked down the relevant product to ascertain whether the projects were from designated countries or not and if not whether that was or was not disclosed to the government it leaves out which is that you have some detail i'll concede as to sales and that's what the relator has put in his complaint he says i've collected sales information such as a product id and an agency and a sale date and in a match what he believes al is the heart of what is required under rule nine b at this stage which is how it is that those sales he says are non compliant he says i know they're not compliant because i've reviewed something he doesn't include any of that information and his complaint and therefore we're left at a loss to understand is he saying it's been one country or another and how are we meant to go research those and i should note here it's important to understand that the g s a schedule and the supply chain is very dynamic so you may have a product that is being manufactured by the same manufacturer in a designated country at one point and then a non designated country at another same product id they might be doing the same thing at the exact same time in fact which is why we pointed out to this court the full year case in the d c circuit where that was recognized that there may be different versions of the exact same product with the same product id that are manufactured in a designated versus a non designated kind sounds like you can't certify should be certified and you never know that that's your honor it is right on that problem but i agree with that so these are the types of details that we need some basic detail as to how it is that the apparent lists that are to that are referenced by the by the relator show or would show when if we went to discovery that these products were actually from non compliant countries all we have here is the conclusory assertion they are from non compliant countries because i looked at either later and that is not good enough at this point so i can see we have some sales data but that is really the heart of the issue where did these product lists come from who are they from to the defendants have those lists there are no factual allegations in this complaint that go to any of those critical critical questions at this stage and rule ninety serves a gate keeping function it heightens the particularities required so that defendants reputation can be can be protected from harm it requires more than the usual investigation this court has said that in many cases and that's that's really the problem here the other thing i would with the ninety issue the other thing i notice about ninety is that the  relator has now made a clear concession in his reply brief about the actual requirements for about selling complying or not complained products that he says are the heart of the basis for a fraud action here he he certainly has an extensive paragraphs in the complaint about far clauses and g s a contracts but he then has this pipe paragraph which we pointed out in our brief in which he says and those clauses about compliance they should have been in the in the defendant's contracts each one of them we pointed that out in our brief and his reply at fifteen he says i can't plead with particularity the details of those contracts but i should get a pass because those are something that's in the possession of the defendants only that's not correct those are contracts with the government they're not uniquely in the defense possession and he can't get a pass on the most basic underlying requirement for him to take a fraud forward those are my two issues with with the ninety issue and whether or not he's pled with particularity that that the products were in fact from a non compl designated country requirements but it seems to me that is the sort of information that would be within the exclusive knowledge of the defendants so what i'm wondering is if you agree or disagree some manner i would i would agree with you that that that level of specificity is not strictly required at this stage now i have a few after comments to make him response because i don't think that ends the question or the answer  which is that first of all i'm not sure that the district judge i think perhaps he could have worded it more artfully but i'm not sure that he actually required an individual to be named but it is true that we pointed out in our brief that suggests that while identifying a particular individual is not a strict requirement this stage it certainly is something that the court can consider in its overall analysis of whether the complaint has been played particulary i would say that i'm response to the counsel's arguments that certainly if this case were to go into discovery and beyond which it should not that corporations only act or individuals and that that kind of specificity would at least later be be required however the key here is is not about naming and one individual or another from each of these companies it's the fact that there is simply nothing factually alleged that would lead to a reasonable inference that this is a fraud action but the companies sold non compliant goods knowingly or with reckless disregard as opposed to a breach of contract so certainly if your dick said that he's pl with particularity that he sold the then sold non compliant goods he still hasn't provided any factual allegations as to how that was done knowingly and we pointed out for instance the fouler case from the seventh circuit which i think is right on point here that even to provide some kind of factual legation that would show that the conduct even if it breached the contract or violated or regulation was done with some kind of knowledge reckless disregard and in that case the defendant and excuse me the plaintiffs pleaded with the court saying we have hundreds and hundreds of pages in our complain extensive exhibits just like the relator has here and the court said that's not enough you need the factual allegations as to see enter what about the requirement for a certification  is that was that present in the groupings because the argument here is that you had an obligation to affirmatively certify that these products were not from the wrong countries and by certifying that in it's false when it when it's false you agree you're i mean the certification requires you to have knowledge when you're wrong isn't that a false statement i can't recall express the weather was a certification of issue their course i would point out that again he hasn't i don't think sufficiently played that any event is actually did make a certification but even so it's been referred to as a certification that's made earlier before the goods are sold before the products are could consider factual allegations versus that which he does not he does plea that you had a certification you had a duty to look for the goods being non compliant or not and then he says that you did it and you sold non compliant goods conclusion you did it knowingly or with reckless disregard in fact it is in the reply brief they say if you did look at the country of origin data then they did this with actual knowledge and if they didn't they must have had reckless disregard what is missing there the factual allegation that they had the data that the relator says he relies on he says he knows that that that the products were from non compliant countries he doesn't say anything about whether the offense knew that even to suggest that they had this data in their possession that they either looked at it or they didn't how is it that he how is it that the defendants acted with reckless disregard or actual knowledge as opposed to that they just didn't know he has to plead at least something to create an inference as opposed to right now it's just simply possible that it's a breach assuming they're not compliant versus that they did something with with actual knowledge or even a reckless disregard and again i mean it's not it's not just the feller case it's case after case the relator suggests that that the knowledge inquiry is not appropriate at this stage that's incorrect there is a certain level to which it can only be analyzed but he has not even begun to meant that level to me that level in the district court properly recognized that even if it even if its language was perhaps not the most held to know that you were violating that obligation that you were violating a certain certification that you made and that is again what is missing here no factual geishas that would allow this court or the say there is a reasonable inference that there was that there was not knowing sales of non compliant products and the one of the thing i'm just going to point out with my remaining time is is just to ensure that it's it's recognized that the relator here never formally sought some leave to amend and i notice that they dropped a sentence or two in their reply brief about that so i just thought i would briefly mention that at the district court level the judge denied did not allow just dismissed with prejudice and did not allow any leave to  the this court upheld the that affirmed a dismissal and a denial of the law of motion of the leave to amend where exactly that was the failure was failing to formally seek it as well as failing to provide detail in the request however informally made as to what it was that the what detail that would be provided if a good opportunity was presented again that's what happened here so there's no abuse of discretion here and even if there had been an issue at the district court level of course the relator here didn't actually challenge the denial of leave to amend by the district court in his opening bell if he mentions it in a sentence or two of his reply that's too late that's two waivers and hear two complaint in this case mr berkowitz had to start somewhere he had to have notice that one product sold by a particular manufacturer he had a police force a suspicion that it was it manufactured in a non t a a compliant country so what did he do he then looked at a bunch of products sold by the defendants manufactured by other manufacturers he did access in other words he looked at facts that would lead you to launch an investigation into wrecked consequence the warrants anything further yes ron just a few quick points before we conclude with respect to the the issues regarding whether these defendants knew that the products they were selling could have come from non compliant countries that's the very definition of reckless disregard that these the pendants didn't have access to the information that would tell them where the products came from then how could they have made any representations t specific employee question just to quickly return to that i think it's important for the court to consider these allegations from the perspective of the government which can also be a plaintiff in post claims i case of course certainly the government doesn't have access to the specific employee information  in each of these dependent cut companies and wouldn't be able to to meet judge change pleading standard either with respect to to the question of whether we have alleged facts that would but would support a reasonable inference that these defendants rock had knowledge that they were committing fraud on the government the court is discussed and in cases like lamers that profit motive can be can be used to turn for intent certainly given the number of sales and the dollar amounts  the number of products here on the can establish fact that that inference is a proper wants to make quickly with the structure the first to file question i think that the courtship should also be reminded that the united states the other side of all of