UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ex rel

. , )

AARON J. WESTRICK, Ph.D., ) ) Plaintiffs, ) )

v. ) Civil Action No. 04

- 0280 (PLF) ) SECOND CHANCE BODY ARMOR, INC., )

et al

. , ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

In his pretrial brief [Dkt

. No. 531], the relator, Dr. Aaron J. Westrick, asks the

Court to clarify whether the conspiracy claim asserted under the False Claims Act is still alive in

this case and whether the parties may proceed at trial , among other things, on a conspiracy theory

under Count 3 of the United States’ s econd a mended c omplaint. According to Dr . Westrick,

Judge Richard W. Roberts , to whom this case was previo usly assigned

, dismissed the conspiracy

claim in the related case , United States v. Toyobo Co. , Ltd

. (Civil Action No. 07

- 1144 ), but not

in the instant case

, United States ex rel. Westrick v. Second Chance Body Armor, Inc

. ( Civil

Action No. 04

- 0280 )

. Dr

. Westrick suggests that this Court inadvertently created some

confusion about the matter in its decision of July 14, 2017 resolving the United States’

subsequent motion for reconsideration. See United States ex rel. Westrick v. Second Chance

Body Armor, Inc. , 266 F. Supp. 3d 110 (D.D.C. 2017)

. The Court agrees.

In the Toyobo case ( Civil Action No. 07

- 1144 ) , J udge Roberts granted the motion

of defendants Toyobo Co mpany Ltd. and Toyobo America, Inc. (collectively, “Toyobo”) to2 dismiss the conspiracy claim between Toyobo and the bulletproof vest manufactu r ers other than

Secon d C hance, which was not named as a defendant in that c a se. Se e United States v. Toyobo

Co. , Ltd

. , 811 F. Supp. 2 d 37, 51 (D.D.C. 2011 ) . By contrast, in this case ( Civil Action

No. 04

- 0280 ) , Judge Roberts denied Toyobo’s motion to dismiss the conspiracy claim between

Toyobo and S e con d Chance

. See United States ex rel. Westrick v. Second Chance Body Armor,

Inc

. , 685 F. Supp. 2d 129

, 141 (D.D.C. 2010 ). He found t h a t the four corners of the amended

complaint contained detailed assertion s of meetings between Toyobo and Second C hance which

were sufficient “ at the motion to dismiss stage ” t o allege a claim for conspiracy

. See i d

.
Later, J udg e Roberts considered the parties’ c r oss motions for partial summary
judgment on va r ious claims asserted in both actions

. See United States ex rel. Westrick v.

Second Chance Body Armor Inc. , 1 28 F. Supp. 3d 1 (D.D.C. 2015)

, recons. denied in part sub

nom. Un ited States v. Second Chance Body Armor Inc. , No. 04

- 0280, 2016 WL 3033937

(D.D.C. Feb. 11, 2016)

. Judge Roberts denied in relevant part Toyobo’s motion for partial

summa ry judgment as to the conspiracy claim between Toyobo and Second Chance (Count 3)

.

See United States ex rel. Westrick v. Second Chance Body Armor Inc. , 128 F. Supp. 3d at 19

,

21

- 22. Although the United States moved for reconsideration of Judge Robert s ’ summary
judgment opinion

, Toyobo did not

. See Un ited States v. Second Chance Body Armor Inc. , 2016

WL 3033937, at * 1

.

When the United States filed a second motion for reconsideration of Judge

Roberts’ summary judgment de c is i on , this C ourt addressed th e conspiracy claim alleged between

Toyobo and Second Chance in the following footnote :
The United States’ supplemental bri ef describes these events as a conspiracy be tween Toyobo and Second Chance [additional quotation marks omitted]. US Supp. at 15 n.43. Judge Roberts previously rejecte d any such conspiracy, stating: “ The3 government’s allegations that the vest manufacturers were aware by mid

- 2001 t hat Zylon was def ective [ ] yet continued to sell Zylon vests through 2005 are insufficient to aver that Toyobo and the vest manufacturers agreed to anything. Moreover, the notion that Toyobo conspired with the vest manufacturers is inconsistent with the government’s alleg ations that Toyobo misrepresented the extent and severity of Zylon’s degradation to the vest manufacturers to induce them to continue to sel l their vests to the government. ”

See United States ex rel. Westrick v. Second Chance Body Armor, Inc.

, 26 6 F

. Supp. 3d at 116

n.8 (quoting United States v. Toyobo Co. Ltd. , 811 F. Supp. 2d at 51)

. The confusion to which

Dr. Westrick now points arose because the first sentence of the footnote referred to the

conspiracy between Toyobo and Second Chance alleged in t he instant action, Civil Action

No. 04

- 0280

. The second sentence then incorrectly suggested that Judge Roberts had rejected

this same Toyobo

- Second Chance conspiracy

, when in fact he had not. The quotation which

follows is an excerpt from Judge Robe rts’ earlier opinion, United States v. Toyobo Co. Ltd. , 811

F. Supp. 2d at 51, dismissing the conspiracy claim asserted in the Toyobo case , Civil Action

No. 07

- 1144, between Toyobo and the bulletproof vest manufac tu rers other than Second Chance.

Accordingly , it is hereby

ORDERED that the conspiracy claim asserted under the False Claims Act in

Count 3 of the United States’ second amended complaint remains at issue in this case and will be

decided following the bench trial currently set to begin o n June 18, 2018.

SO ORDERED.

/s/
PAUL L. FRIEDMAN United States District Judge DATE: April 18, 2018