Amicus Curiae Brief — United States, et al., ex rel. Tracy Schutte, et al., Petitioners v. SuperValu Inc., et al.

Nos. 21-1326 & 22-111

IN THE

Supreme Court of the United States

UNITED STATES, et al., EX REL. TRACY SCHUTTE, et al.,

Petitioners,

v.

SUPERVALU INC., et al.,

Respondents.

UNITED STATES, et al., EX REL. THOMAS PROCTOR,

Petitioner,

v.

SAFEWAY, INC.,

Respondent.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR PROFESSIONAL SERVICES COUNCIL

AND INTERNATIONAL STABILITY OPERATIONS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

FELICIA H. ELLSWORTH

EMILY W. ANDERSEN

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

DAVID W. OGDEN

Counsel of Record

RONALD C. MACHEN

DAVID M. LEHN

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

david.ogden@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE................................... 2

SUMMARY OF THE ARGUMENT ............................... 4

ARGUMENT ....................................................................... 7

I.

ADDITIONAL REASONS JUSTIFY THE

SEVENTH CIRCUIT’S RULE ......................................... 7

A. In Practice, Petitioners’ Proposed

“Honest Belief” Defense Would

Rarely, if Ever, Be Available .............................. 7

B. Petitioners’ Position Would Be

Especially Unfair and Disruptive if

Corporate Scienter Could Be Proved

by Aggregating Individual Employees’

Knowledge............................................................ 10

II. WITH RESPECT TO CONTRACTUAL

OBLIGATIONS, THERE ARE STRONG

ADDITIONAL REASONS WHY A

CONTRACTOR’S SUBJECTIVE

UNDERSTANDING AND EVEN SUPPOSED

“AUTHORITATIVE GUIDANCE” SHOULD

BE IRRELEVANT ......................................................... 12

A. Under Longstanding Legal Principles,

the Government Cannot Determine the

Meaning of a Contract Provision

Unilaterally .......................................................... 12

ii

TABLE OF CONTENTS—Continued

Page

B. These Contract Principles Render the

Contractor’s Subjective Understanding

and Any “Authoritative Guidance”

Irrelevant When There Is a

Reasonable Interpretation ................................ 16

C. The Complexity of Defense

Contracting Reinforces the Irrelevance

of the Subjective Understanding of an

Ambiguous Obligation ........................................ 21

III. IF THE COURT REJECTS THE SEVENTH

CIRCUIT’S POSITION, IT SHOULD

CAREFULLY LIMIT THE RELEVANCE OF

SUBJECTIVE UNDERSTANDING................................. 26

CONCLUSION ................................................................. 28

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Alvin Ltd. v. United States Postal Service,

816 F.2d 1562 (Fed. Cir. 1987) .................................. 13

Blue & Gold Fleet, LP v. United States,

492 F.3d 1308 (Fed. Cir. 2007) ............................ 20-21

Commercial Contractors, Inc. v. United States,

154 F.3d 1357 (Fed. Cir. 1998) .................................. 26

Dalton v. Cessna Aircraft Co., 98 F.3d 1298

(Fed. Cir. 1996) ........................................................... 21

Heckler v. Community Health Services,

467 U.S. 51 (1984) ......................................................... 9

Keeter Trading Co. v. United States,

79 Fed. Cl. 243 (2007) ................................................. 14

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ................. 9, 13, 16

Lockheed Martin IR Imaging Systems, Inc. v.

West, 108 F.3d 319 (Fed. Cir. 1997) ......................... 13

Mobil Oil Exploration & Producing Southeast,

Inc. v. United States, 530 U.S. 604 (2000) ............... 13

Neal & Company v. United States,

945 F.2d 385 (Fed. Cir. 1991) .............................. 14-15

Newport News Shipbuilding & Dry Dock Co. v.

Garrett, 6 F.3d 1547 (Fed. Cir. 1993) ....................... 16

NOAA Maryland, LLC v. Administrator of

General Services Administration,

997 F.3d 1159 (Fed. Cir. 2021) .................................. 15

Norwood Manufacturing, Inc. v. United States,

21 Cl. Ct. 300 (1990) .................................................... 14

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Novicki v. Cook, 946 F.2d 938 (D.C. Cir. 1991) ............. 16

NRM Corp. v. Hercules, Inc., 758 F.2d 676

(D.C. Cir. 1985) ........................................................... 13

P.J. Maffei Building Wrecking Corp. v. United

States, 732 F.2d 913 (Fed. Cir. 1984) ....................... 14

Southern California Edison Co. v. United

States, 226 F.3d 1349 (Fed. Cir. 2000) ............... 15-16

States Roofing Corp. v. Winter, 587 F.3d 1364

(Fed. Cir. 2009) ............................................... 13-14, 20

Sturm v. United States, 421 F.2d 723

(Ct. Cl. 1970) ................................................................ 14

United States ex rel. Harrison v. Westinghouse

Savannah River Co., 352 F.3d 908

(4th Cir. 2003).............................................................. 11

United States ex rel. Purcell v. MWI Corp.,

807 F.3d 281 (D.C. Cir. 2015) .............................. 14, 27

United States v. Science Applications

International Corp., 626 F.3d 1257

(D.C. Cir. 2010) ..................................................... 11-12

United States v. Seckinger, 397 U.S. 203 (1970) .......... 13-15

Universal Health Services, Inc. v. United

States ex rel. Escobar, 579 U.S. 176 (2016) ............. 20

REGULATIONS AND RULES

48 C.F.R.

§§ 1.000 et seq. ............................................................. 16

§§ 201.101 et seq. ......................................................... 23

v

TABLE OF AUTHORITIES—Continued

Page(s)

S. Ct. R. 37.6 ......................................................................... 2

OTHER AUTHORITIES

Boese, John T. & Douglas W. Baruch, Civil

False Claims and Qui Tam Actions

(5th ed. updated 2022) .......................................... 17, 19

Congresional Budget Office, Logistics Support

for Deployed Military Forces (Oct. 2005),

https://www.cbo.gov/sites/default/files/109t

h-congress-2005-2006/reports/10-20militarylogisticssupport.pdf................................ 23-24

Congressional Research Services, Defense

Acquisitions: How and Where DOD

Spends Its Contracting Dollars

(updated July 2, 2018), https://crsreports.

congress.gov/product/pdf/R/R44010........................ 21

Department of the Army, Logistics Civil

Augmentation Program Support to

Unified Land Operations (Aug. 2016),

https://armypubs.army.mil/epubs/DR_pubs

/DR_a/ARN2624-ATP_4-10.1-000-WEB1.pdf .............................................................................. 23

Department of Defense, Directive 3020.49

(updated Mar. 18, 2022), https://www.esd

.whs.mil/Portals/54/Documents/DD/issuances/dodd/302049d.pdf?ver=2020-08-14151206-757 ................................................................... 22

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Department of Defense, Report of the Defense

Science Board Task Force on Contractor

Logistics in Support of Contingency

Operations (June 2014), https://dsb.cto.mil/

reports/2010s/CONLOG_Final_Report_17J

un14.pdf.................................................................. 21-24

Department of Defense, Report of the Defense

Science Board Task Force on

Improvements to Services Contracting

(Mar. 2011), https://dsb.cto.mil/reports/

2010s/ADA550491.pdf ................................................ 22

Joint Chiefs of Staff, Joint Publication 4-05:

Mobilization Planning (Oct. 23, 2018),

https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp4_05.pdf .............................. 21

National Research Council of the National

Academies, Force Multiplying Technologies

for Logistics Support to Military Operations

(2014), https://nap.nationalacademies.org/

read/18832/chapter/1 ...................................................... 22

Section 809 Panel, 1 Report of the Advisory

Panel on Streamlining and Codifying

Acquisition Regulations (Jan. 2018),

https://discover.dtic.mil/wp-content/uploads/809-Panel-2019/Volume1/

Sec809Panel_Vol1-Report_Jan2018.pdf ................. 23

4 Williston, Samuel, A Treatise on the Law of

Contracts (3d ed. 1961) .............................................. 13

IN THE

Supreme Court of the United States

Nos. 21-1326 & 22-111

UNITED STATES, et al., EX REL. TRACY SCHUTTE, et al.,

Petitioners,

v.

SUPERVALU INC., et al.,

Respondents.

UNITED STATES, et al., EX REL. THOMAS PROCTOR,

Petitioner,

v.

SAFEWAY, INC.,

Respondent.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR PROFESSIONAL SERVICES COUNCIL

AND INTERNATIONAL STABILITY OPERATIONS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

2

INTEREST OF AMICI CURIAE1

Established in 1972, Professional Services Council

(“PSC”) is an association whose core mission is to ensure

that the federal government adopts commonsense policies for how it solicits, acquires, and manages services,

technology, and support from contractors. Its more than

400 members provide various government services,

ranging from healthcare and national defense solutions

to operations and linguistics support to all federal agencies.

PSC represents its members in areas of key acquisition policy and legislation and has a strong record of effective advocacy. PSC and its members have engaged

with the Department of Defense (“DOD”) on improving

contract formation, payment, and close-out processes;

negotiated with Congress, the White House, and DOD

on rules regarding contract performance and results;

and provided expertise to numerous agencies including

DOD, the Federal Aviation Administration, and the Department of Health and Human Services. PSC has led

reforms to federal procurement protest rules and helped

drive revisions to multiple parts of the Federal Acquisition Regulation (“FAR”), including Part 15, as well as

the DOD FAR Supplement (“DFARS”). It helps members navigate federal programs requiring contractor

support and engage with relevant federal agencies. It

also provides its members with information on maintaining effective compliance programs and identifies areas

that merit collaboration with the government.

1

Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for a party authored this brief in whole or in part and

that no person other than amici curiae, its members, or its counsel

made a monetary contribution to fund the preparation or submission of this brief.

3

International Stability Operations Association

(“ISOA”) was founded more than twenty years ago to

foster international stability by codifying principles of

transparency and accountability to govern nongovernmental and humanitarian organizations. Today, its

members include small consultancies and large government contractors, and offer services that run the gamut

from emergency medical staffing to military logistics.

ISOA also maintains important partnerships with organizations around the world, such as the Peacekeeping

and Stability Operations Institute at the Army War College; the American Business Council in Dubai; and the

Afghan-American Chamber of Commerce.

ISOA’s members have deep expertise in responding

to instability arising from natural disasters, political unrest, military operations, and other events. While its

members play an active role in implementing coordinated and rapid responses to such events, they are also

involved in long-term development projects. ISOA’s advocacy work includes engaging policymakers and government agencies to address issues affecting its members.

Accordingly, PSC and ISOA have a strong interest

in the standards governing suits under the False Claims

Act (“FCA”). From their work on government contracts

and participation in various federal programs, their

members have been involved in many FCA lawsuits implicating issues central to the question presented here.

As amici, they seek to preserve standards that balance

the government’s need for effective mechanisms to deter

and punish fraud, contractors’ need for fair notice of

their duties and potential liabilities, and both sides’ need

for flexibility in serving the complex, ever-evolving public good.

4

SUMMARY OF THE ARGUMENT

Respondents have it right: the text and structure of

the FCA, as well as the constitutional principles of notice

and lenity, do not allow for FCA liability when a claimant’s representation of compliance with a statutory, regulatory, or contractual obligation was true under a reasonable interpretation of that obligation. In that situation, the claimant’s subjective understanding of the obligation is irrelevant. To respondents’ persuasive brief,

amici add three sets of points: further reasons why petitioners are incorrect regardless of the source of the obligation; special reasons why subjective understanding

and even the notion of “authoritative guidance” are irrelevant with respect to ambiguous contractual obligations; and important limitations on the role of subjective

understanding should the Court nonetheless deem it relevant.

I. There are weighty additional reasons why petitioners’ position should be rejected regardless of the

source of the ambiguous obligation.

First, petitioners’ position that a claimant lacks scienter if it “honestly believed” its interpretation offers a

false promise of exculpation and instead exposes claimants to nearly certain liability whenever their reasonable interpretation is later deemed “wrong.” Petitioners’

assertion that a claimant has scienter if it fails to inquire

into the meaning of an ambiguous obligation or to heed

the views of virtually anyone with an opinion on the matter means that, in practice, claimants will rarely be able

to “honestly believe” anything other than the most government-friendly interpretation.

Second, it would be especially unfair if a company’s

scienter could be proved under petitioners’ approach by

aggregating the disparate knowledge, beliefs, and

5

actions of its individual employees. Individual remarks—often uninformed or exploratory—recognizing

some ambiguity will not be uncommon. But such remarks are better viewed as benign or at least not proof

of the organization’s deliberate ignorance or recklessness, let alone actual knowledge of falsity.

II. Ambiguous obligations found in contracts are a

special case. Longstanding principles of government

contract law place the private contractor on equal footing with the government, and therefore the government

has no special privilege to determine the meaning of a

contractual obligation. In fact, when a contractual obligation is ambiguous, it is the contractor’s interpretation

that controls: under the ancient rule of contra

proferentem, ambiguous contract provisions are interpreted against the government, as long as the pro-contractor interpretation is reasonable. The reasonable

pro-contractor interpretation prevails regardless of

whether the contractor actually believed it was the best

interpretation. And correspondingly, there is no duty to

inquire into the government’s or anyone’s view of the

meaning of the obligation, let alone to defer to a supposedly authoritative statement by the government, since

the contractor is the authority.

Congress did not intend the FCA to rewrite this

long-established law of government contracts or to deter

contractors from relying on that law. Therefore, with

respect to contractual obligations that are plausibly ambiguous, a contractor’s subjective understanding of the

obligation is irrelevant if its representation of compliance was true under a reasonable interpretation; a contractor has no duty to inquire into its meaning; and a contractor generally need not even heed the “warning” of

supposedly “authoritative guidance” issued by the government.

6

These conclusions are reinforced by the practical

complexity of government contracting. Many government contracts, particularly in the defense sector, are

voluminous and constantly evolving. It would be impracticable for contractors to maintain the vigilance necessary to identify every contractual ambiguity, conduct

an inquiry, and form an educated belief about the best

meaning. If they were required to do so in order to avoid

FCA treble damages, they would have to employ more

people and take longer to perform their duties, undermining the cost savings and speed that make private

contracting so advantageous to the government.

III. Even with respondents’ approach, scienter under legal-falsity theories could be established where the

claimant’s interpretation was unreasonable or where the

representation was false under any reasonable interpretation. Accordingly, the FCA would still reach intentional fraud. But if the Court were to reject respondents’ approach and hold that a claimant’s subjective understanding of an ambiguous obligation is relevant to

scienter even when the representation of compliance is

true under a reasonable interpretation, the Court should

nonetheless carefully limit the role of such evidence.

First, the Court should hold that the claimant had

scienter only if it either intended to defraud the government or actually believed its representation was false at

the time it submitted the claim and did not disclose to

the government the interpretation on which its representation relied. Second, the Court should make clear

that scienter is not automatically established by evidence that the claimant recognized the government did

or might disagree with its interpretation. These qualifications would be vital to minimize the disruption to the

longstanding principles and practices of government

contracting.

7

ARGUMENT

I.

ADDITIONAL REASONS JUSTIFY THE SEVENTH CIRCUIT’S RULE

Amici agree with respondents’ compelling textual,

structural, and constitutional reasons why the FCA

should be construed not to allow liability when a claimant’s representation of compliance with an obligation

was true under some reasonable interpretation of that

obligation, whatever its source. Rather, “[t]he burden of

clarifying ambiguous laws before imposing punishment

properly rests on the government.” Resp. Br. 51. Here,

amici amplify two general points regarding petitioners’

position.

A. In Practice, Petitioners’ Proposed “Honest

Belief” Defense Would Rarely, if Ever, Be

Available

Although petitioners say that an FCA defendant

“who makes a reasonably prudent inquiry and honestly

believes its claims were true is not liable,” Pet. Br. 20,

37, 54, 57; see also U.S. Br. 18, 31-32, it may be nearly

impossible to meet that standard. Instead, petitioners’

approach would, in practice, impose FCA liability, including treble damages, whenever a claimant expressly

or impliedly certified compliance with an ambiguous obligation unless its conduct conformed to the most progovernment reasonable interpretation of the obligation

conceivable. In other words, under petitioners’ approach, claimants will almost always have scienter if

their representation of compliance is false under some

reasonable interpretation of the obligation. Petitioners’

position, therefore, would create a sweeping risk of FCA

liability for contractors, far beyond Congress’s evident

intent.

8

In petitioners’ view (Br. 20-21, 35-37, 51-53), once a

claimant recognizes that an obligation may be ambiguous (or, perhaps, is “likely” ambiguous—petitioners are

imprecise on this point), it must “inquire” into the obligation’s meaning, including consulting a vast array of

“sources” on the question, such as “attorneys,” “compliance officers,” “the Government” and its “agents,” “the

Government’s [other] contractors,” and “industry experts.” See also U.S. Br. 18. The failure to do so would,

according to petitioners (Br. 21, 33-36), often constitute

“deliberate ignorance,” which amounts to scienter. The

claimant’s duty, however, would not end with inquiry;

under petitioners’ view, the claimant must then heed

whatever reasonable government-favoring interpretation it identified or learned of through the inquiry, regardless of whether the government had yet adopted it.

Petitioners, however, do not specify whose attorneys or

compliance officers or which government officials should

be consulted, nor what would qualify those “sources” to

speak authoritatively enough on the meaning of obligations that claimants would have to heed their opinion.

Petitioners also fail to account for the possible, perhaps

likely, event that these “sources” would not all espouse

the same interpretation. Still, under petitioners’ approach, acting “contrary to” some interpretation that is

more favorable to the government offered by someone

would establish the claimant’s supposed “recklessness,”

which is again to say, its scienter. Pet. Br. 36; accord

U.S. Br. 18, 32.

Consequently, under petitioners’ approach, the only

way claimants could confidently avoid FCA liability for

representing compliance with an ambiguous obligation

would be to make such representations only if their conduct conformed to the most pro-government plausible

interpretation of the obligation. Petitioners’ notion of a

9

defense based on an “honest belief” in a less-government-friendly interpretation after a “reasonable inquiry” is an empty promise; such a belief would rarely, if

ever, be possible. And even if it were, the threat of treble damages would make maintaining such a belief

highly imprudent.

Petitioners’ approach also vastly overreaches in that

the “sources” it would require claimants to consult and

heed are not authoritative at all. Cf. Heckler v. Community Health Services, 467 U.S. 51, 64 (1984) (private

party could not rely on “informal advice given by [government’s] agents” and “intermediar[ies]”). With respect to ambiguous statutory and regulatory obligations,

an authoritative interpretation can be supplied only by a

court or, sometimes, an agency (if its interpretation is

reasonable and reflects its “authoritative or official position, rather than a[] more ad hoc statement” (cleaned

up)). Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). With

respect to ambiguous contractual obligations, it is the

contractor’s view (if reasonable) that is controlling. See

infra pp. 13-16. And of course, courts decide whether an

obligation is ambiguous or an interpretation is unreasonable. Thus, claimants have significant room—indeed,

sometimes the right—to interpret obligations differently from the government and to defend those interpretations, but petitioners’ approach would effectively deny

them that ability by deeming it fraudulent and imposing

FCA liability if they disregard a more governmentfriendly interpretation offered by virtually anyone.

That would be an untenable and unfair regime for claimants.

10

B. Petitioners’ Position Would Be Especially Unfair and Disruptive if Corporate Scienter

Could Be Proved by Aggregating Individual

Employees’ Knowledge

The danger that petitioners’ position will yield unfounded and excessive FCA liability is heightened by

the problem of who within a company could properly be

said to “know” what a statutory, regulatory, or contractual obligation means or whether the company complied

with that obligation.

Government contractors, especially in the defense

sector, are often very large organizations, with diverse

specializations among their employees. Legal and contractual obligations require specialized skills and training to interpret, which most employees lack. And it is

impossible for qualified employees to identify all potentially relevant ambiguities in advance. Instead, many

ambiguities will not surface until the contract is being

performed. But the employees who will be in a position

to recognize and address an obligation’s ambiguity—

those who do the contract work or prepare and submit

claims to the government—often will not be the ones

with the skills and training needed to actually recognize

and resolve ambiguity. Or they might recognize ambiguity and casually offer their own opinion on its meaning

or the company’s compliance with it, without checking

with a qualified colleague. Given the scope and scale of

many defense contracts, petitioners’ position would

mean that contractors would be nearly certain to face

constant, extensive FCA treble liability for nothing

more than ordinary, appropriate, and unavoidable actions consistent with reasonable understandings of their

duties.

11

This danger is compounded by the reality that the

information relevant to a company’s compliance vel non

with an obligation will often be fragmented among multiple employees—unavoidably so, because of the scope

and scale of many defense projects. For example, the

employee who realizes that an obligation is potentially

ambiguous might be unaware of the facts that make the

ambiguity a ripe question or of facts essential to assessing whether the company complied with one or another interpretation of that obligation, while a different

employee might be in the reverse situation, knowing the

facts but unaware of the interpretative issues. Or, more

likely, this information will be divided among myriad

employees, each with only a piece of the puzzle and none

seeing the whole picture or necessarily even realizing

there is a whole picture to be seen.

Consequently, it would be highly problematic if an

FCA plaintiff could prove that a company had scienter

by aggregating the knowledge of its individual employees, especially under petitioners’ expansive conception

of scienter. As the D.C. Circuit has recognized, “under

the FCA, ‘collective knowledge’ provides an inappropriate basis for proof of scienter.” United States v. Science

Applications International Corp., 626 F.3d 1257, 1274

(D.C. Cir. 2010); see also United States ex rel. Harrison

v. Westinghouse Savannah River Co., 352 F.3d 908, 918

n.9 (4th Cir. 2003) (describing collective knowledge doctrine skeptically in FCA context). That court concluded,

rightly, that a plaintiff should not be able to “prove scienter by piecing together scraps of ‘innocent’ knowledge

held by various corporate officials, even if those officials

never had contact with each other or knew what others

were doing in connection with a claim seeking government funds.” Science Applications, 626 F.3d at 1275

(cleaned up). Otherwise, FCA liability could be based on

12

nothing more than a simple “communication failure” or,

worse, on the benignly conceived structure of the organization. Id. This problem is exacerbated by the potential

for FCA plaintiffs to cherry pick the employee

knowledge they wish to aggregate, while disregarding

conflicting employee knowledge.

The D.C. Circuit’s wisdom, however, has not deterred some qui tam relators from attempting to prove

scienter by cobbling together ad hoc statements by individual, often lower-level employees expressing their

personal opinion about the meaning of an obligation or

the company’s compliance vel non, regardless of

whether they were qualified to interpret the obligation,

aware of all the facts relevant to the company’s compliance, or responsible for preparing or submitting the

claim. Affirming the Seventh Circuit’s position would go

a long way toward curbing such overreaches.

II. WITH RESPECT TO CONTRACTUAL OBLIGATIONS,

THERE ARE STRONG ADDITIONAL REASONS WHY A CONTRACTOR’S SUBJECTIVE UNDERSTANDING AND EVEN

SUPPOSED “AUTHORITATIVE GUIDANCE” SHOULD BE

IRRELEVANT

There are additional reasons why petitioners’ position is wrong when the ambiguous obligation at issue is

contractual. In fact, in the contractual context, even the

notion of “authoritative guidance” that “warns away”

from an interpretation is inapt.

A. Under Longstanding Legal Principles, the Government Cannot Determine the Meaning of a

Contract Provision Unilaterally

Although the meaning of an ambiguous statutory or

regulatory obligation is determined by the court or,

sometimes, by the government agency (as long as its

13

interpretation is reasonable), see Kisor, 139 S. Ct. at

2406, “[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private

individuals,” Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 607 (2000)

(cleaned up); see also, e.g., Lockheed Martin IR Imaging

Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997)

(“General rules of contract interpretation apply to contracts to which the government is a party.”). Hence, the

meaning of public contracts is determined by “the mutual intentions of the parties,” i.e., the government and

the private contractor. NRM Corp. v. Hercules, Inc.,

758 F.2d 676, 681 (D.C. Cir. 1985); accord Alvin Ltd. v.

U.S. Postal Service, 816 F.2d 1562, 1565 (Fed. Cir. 1987)

(“‘the avowed purpose and primary function of the court

is the ascertainment of the intention of the parties’”

(quoting 4 Williston, A Treatise on the Law of Contracts

§ 601 (3d ed. 1961))).

When the expression of the contracting parties’ intent is ambiguous, ordinary principles of contract law

also supply a solution: the rule of contra proferentem,

which provides that “as between two reasonable and

practical constructions of an ambiguous contractual provision, … the provision should be construed less favorably to that party which selected the contractual language.” United States v. Seckinger, 397 U.S. 203, 216

(1970). This rule governs even where the drafter “was

the United States.” Id. at 210; see also, e.g., States Roofing Corp. v. Winter, 587 F.3d 1364, 1369 (Fed. Cir. 2009)

(“It is well established that if a drawing or specification

is ambiguous and the contractor follows an interpretation that is reasonable, this interpretation will prevail

over one advanced by the Government, even though the

Government’s interpretation may be a more reasonable

14

one, since the Government drafted the contract.”

(cleaned up)); Norwood Manufacturing, Inc. v. United

States, 21 Cl. Ct. 300, 305 (1990), aff’d, 930 F.2d 38 (Fed.

Cir. 1991) (per curiam) (table); Keeter Trading Co. v.

United States, 79 Fed. Cl. 243, 257 (2007).

Contra proferentem is “accorded considerable emphasis” against the government “because of the Government’s vast economic resources and stronger bargaining

position in contract negotiations.” Seckinger, 397 U.S. at

216. The “oft-repeated and much-applied rule” of contra

proferentem “puts the risk of ambiguity, lack of clarity,

and absence of proper warning on the [government as]

drafting party which could have forestalled the controversy … and it saves contractors from hidden traps not

of their own making.” Sturm v. United States, 421 F.2d

723, 727 (Ct. Cl. 1970). Contra proferentem is particularly important given the sprawling, complex, and everevolving nature of many defense contracts, as discussed

below, see infra pp. 22-25. After all, “[i]f the Government wants a particular interpretation to be made of a

contract provision, it can write the provision to make

that meaning clear.” Neal & Co. v. United States, 945

F.2d 385, 390 (Fed. Cir. 1991).

Thus, to prevail in an ordinary dispute over the

meaning of an ambiguous contractual obligation, the

“contractor need not demonstrate that its interpretation

of the contract is the only reasonable one, … [but

merely] that its construction is at least a reasonable

reading.” P.J. Maffei Building Wrecking Corp. v.

United States, 732 F.2d 913, 917 (Fed. Cir. 1984); see

also, e.g., States Roofing, 587 F.3d at 136; United States

ex rel. Purcell v. MWI Corp., 807 F.3d 281, 291 (D.C. Cir.

2015) (“That [a contractor’s] interpretation may not be

the best interpretation does not demonstrate that

15

[its] interpretation was necessarily unreasonable.”).

Moreover, when applying contra proferentem against

the government, courts inquire only whether the contractor’s interpretation is objectively reasonable, without considering whether, at the time of its performance,

the contractor realized the obligation was ambiguous,

recognized potential alternative interpretations, or subjectively believed that its interpretation was the best

one. See, e.g., Seckinger, 397 U.S. at 213-214, 216 (where

government offered “two reasonable … constructions,”

selecting the one “less favorabl[e]” to government even

though contractor did not espouse it); NOAA Maryland,

LLC v. Administrator of General Services Administration, 997 F.3d 1159, 1166-1170 (Fed. Cir. 2021) (applying

private party’s interpretation simply because it “accord[ed] to standard principles of construction” and was

therefore “at least a reasonable reading”); Neal & Co.,

945 F.2d at 389-390 (applying contractor’s interpretation

simply because it was “not unreasonable”).

Finally, consistent with these contracting principles,

the government generally has no privilege to unilaterally determine the meaning of ambiguous contract provisions even when they incorporate a regulatory provision by reference. “[M]atters of regulatory interpretation when regulations are incorporated into contracts”

are resolved “independently and without deference” to

the government. Southern California Edison Co. v.

United States, 226 F.3d 1349, 1356, 1358 (Fed. Cir. 2000).

This places private parties “on equal legal footing with

the government should a dispute over the contract

arise,” which is appropriate because the incorporated

obligations apply by virtue of the contracting parties’

mutual assent, not by virtue of the regulator’s imposition

upon the regulated. Id. at 1357. “It would be unfair to

give the government such a distinct advantage [as

16

interpretative deference] during an ordinary breach of

contract litigation.” Id. Indeed, consistent with the ordinary rule of contra proferentem, even ambiguous regulatory provisions made binding by their incorporation

into a contract should be construed against the government.2

B. These Contract Principles Render the Contractor’s Subjective Understanding and Any

“Authoritative Guidance” Irrelevant When

There Is a Reasonable Interpretation

The principles of contract law just described imply

that there is no FCA liability if a representation of compliance with an ambiguous contractual obligation was

true under a reasonable interpretation, regardless of the

contractor’s subjective understanding of the obligation

at the time and regardless of any supposed “authoritative guidance” about its meaning. Contractors should

not incur FCA liability for acting consistent with

longstanding contract principles; instead, they should

have a wide berth to do that, and thus should not generally have a duty to inquire into the meaning of potentially ambiguous contract provisions. There is no

2

Even apart from these contract principles, courts “do not defer” to an individual agency’s interpretation of the FAR, 48 C.F.R.

§§ 1.000 et seq.—the principal regulation incorporated into public

contracts. Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir. 1991); see

also, e.g., Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6

F.3d 1547, 1551 (Fed. Cir. 1993). Judicial deference is appropriate

only if “[t]he interpretation … at the least emanate[s] from those

actors, using those vehicles, understood to make authoritative policy in the relevant context.” Kisor, 139 S. Ct. at 2416. But the FAR

“was the joint product of, and must be interpreted by, three different agencies.” Novicki, 946 F.2d at 941.

17

indication that Congress intended the FCA to abrogate

those contract principles.

Under petitioners’ view, contractors violate the

FCA unless they “honestly believed” their interpretation of an ambiguous obligation at the time of their claim

for payment after making “appropriate inquir[ies]” into

the meaning of the ambiguous obligation. Pet. Br. 20, 37,

54, 57. That view rests on the notion that the government-favoring interpretation is authoritative and correct.

But that framework contradicts longstanding contract law, as described above, supra pp. 12-16. Private

contractors are on equal footing with the government.

Accordingly, the government’s interpretation of ambiguous contractual obligations is owed no deference—by

courts or contractors. In fact, when it comes to ambiguous contractual obligations, the rule of contra

proferentem establishes that a reasonable interpretation

favoring the contractor is the authoritative and correct

one.

Therefore, as long as the contractor’s conduct complied with a reasonable interpretation of an ambiguous

contractual obligation, the contractor discharged its contractual duty—and correspondingly, a representation of

compliance in such circumstances is true and cannot be

knowingly false under the FCA. See Boese & Baruch,

Civil False Claims and Qui Tam Actions § 2.03[C][5]

(5th ed. updated 2022) (“[A]mbiguous regulations and

contract provisions should be … strictly construed under

the civil and criminal false claims statutes for purposes

of attaching liability … accord[ing to] the … principle

that an ambiguous provision should be interpreted

against the drafter of the provision, … plac[ing] the burden of proving that the defendant’s interpretation of an

18

ambiguous provision is unreasonable on the party attempting to enforce the provision.”). And further, consistent with ordinary contract law, the FCA cannot require contractors to believe their interpretation was the

best one at the time or even to have had a belief about

how to resolve the ambiguity; contractors are under contract law, and therefore must be under the FCA, free to

act as they wish and then, if the government claims a

breach or default, defend on the ground that their performance complied with a reasonable interpretation.

See supra pp. 13-15.

Further, respect for established contract law warrants a protective zone for contractors against the risk

of FCA liability. Because the government’s interpretation of an ambiguous contractual obligation does not determine the obligation’s meaning, contract law imposes

no duty on private contractors to inquire into, ascertain,

or predict the government’s actual or likely interpretation, and thus neither should the FCA. Petitioners’ contrary approach is particularly bizarre when it comes to

contractual obligations, for it requires the one actor

whose view is actually controlling under contract law—

the contractor—to seek out and then defer to the opinion

of virtually anyone else on the matter. Accordingly,

there should be a high bar under the FCA, where the

contractor has no liability even when a court ultimately

concludes that the contract is not ambiguous, at least if

the provision could plausibly have been thought ambiguous. Otherwise, the specter of FCA liability—and the

attendant exposure to treble damages—would chill contractors’ exercise of their rights under established contract law, causing them to yield to the government the

power to determine the meaning of contract provisions

that the government lacks under contract law and

19

thereby undermining the equal footing contractors

should have.

Even the Seventh Circuit’s position partially contravenes contract law and, to that extent, should not be

adopted in the contract context. The Seventh Circuit

holds that there is scienter if there was “authoritative

guidance” from an appellate court or “the relevant

agency” that “warned … away” from the claimant’s “erroneous interpretation,” even if that interpretation was

otherwise reasonable. No. 21-1326 Pet. App. 27a-28a.

But again, whereas the courts or an agency may have the

authority to determine the meaning of an ambiguous

statutory or regulatory provision under certain circumstances, the contractor determines the meaning of ambiguous contract provisions (within reason). The notion

of “authoritative guidance” that “warns away” from a

reasonable contractor-favoring interpretation of an ambiguous contractual obligation makes no sense. Imposing FCA liability for the failure to look for, find, or follow

governmental statements about the meaning of a potentially ambiguous contract provision would upend settled

contract law to the detriment of contractors and, ultimately, the government.3

Nothing in the FCA’s text or legislative history, nor

in judicial precedent, indicates that Congress intended

the FCA to alter established rules of government contracting. See Boese & Baruch § 2.03 (“Broadening FCA

liability to include ambiguous regulations and contract

terms misinterprets the history and the nature of the

3

The only situation where the government’s guidance could be

binding is where it officially purported to resolve an ambiguity before the formation of the contract. In that situation, the contractor

arguably would have agreed to that meaning, absent indications

otherwise.

20

statute ….”). To the contrary, this Court has held that

the FCA is neither “an all-purpose antifraud statute”

nor “a vehicle for punishing garden-variety breaches of

contract or regulatory violations.” Universal Health

Services, Inc. v. United States ex rel. Escobar, 579 U.S.

176, 194 (2016) (cleaned up). Rather, the FCA reaches

only certain types of fraud about breaches of contract—

that is, the FCA rests atop traditional government-contract rules and imposes liability only for a narrow subset

of violations within the scope of those rules.

To summarize in petitioners’ terms, the FCA sits on

top of rather than displaces ordinary contract law, and

therefore, the FCA, reflecting that law, does not require

contractors to subjectively or honestly believe that their

interpretation was correct at the time of their representation, at least as long as their conduct reflected a reasonable interpretation at the time; does not generally require contractors to inquire into the correct meaning of

a potentially ambiguous contractual obligation or into

the government’s actual or predicted interpretation of

such an obligation; and does not accord the government

(or anyone else) the authority to warn a contractor away

from a reasonable interpretation. Imposing FCA liability in such situations, as petitioners’ approach would do,

would in effect rewrite longstanding legal precedent applicable to government contracts.4

4

To be sure, under contract law “[t]he doctrine of patent ambiguity is an exception to the general rule of contra proferentem”

against the government. Blue & Gold Fleet, LP v. United States,

492 F.3d 1308, 1313 (Fed. Cir. 2007). “A patent ambiguity is one that

is obvious, gross, glaring.” States Roofing, 587 F.3d at 1372. If the

ambiguity is patent, the contractor may have “a duty to inquire

about it at the start.” Id. But that exception does not mean that

contractors have a duty to inquire for purposes of FCA scienter.

21

C. The Complexity of Defense Contracting Reinforces the Irrelevance of the Subjective Understanding of an Ambiguous Obligation

“Without contractor support, the United States

would not be able to arm and field an effective fighting

force.” CRS, Defense Acquisitions: How and Where

DOD Spends Its Contracting Dollars 1 (updated July 2,

2018); see also Joint Chiefs of Staff, Joint Publication 405: Mobilization Planning I-7 (Oct. 23, 2018) (“The total

force includes … contractors ….”); DOD, Report of the

Defense Science Board Task Force on Contractor Logistics in Support of Contingency Operations (“Contractor

Logistics Report”) 23 (June 2014) (“contractors should be

considered as one of the essential components of the Department’s total force”).5 In recognition of this fact, a

First, for all the other reasons that the Seventh Circuit’s rule should

be affirmed irrespective of the source of the obligation—discussed

in respondents’ brief and above, supra pp. 8-9—there should be no

duty of inquiry under the FCA even as to patently ambiguous obligations. Second, even the contract-law exception to contra

proferentem would not apply in the context of breach, which undergirds FCA claims. The contractor’s “failure” to “seek clarification

from the government” about a patent ambiguity “precludes acceptance of its interpretation”—but only “in a subsequent action [by

the contractor] against the government,” such as in a “bid protest

action,” Blue & Gold, 492 F.3d at 1313, or an “equitable adjustment”

action, Dalton v. Cessna Aircraft Co., 98 F.3d 1298, 1304-1306 (Fed.

Cir. 1996). There is no reason to construe this limited exception to

preclude a contractor from relying on contra proferentem defensively with respect to a patent ambiguity in the FCA context, where

the contractor is not seeking to recover funds but instead is refuting

an accusation that its representation of compliance with an ambiguous obligation was knowingly false.

5

https://crsreports.congress.gov/product/pdf/R/R44010;

https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/

jp4_05.pdf; https://dsb.cto.mil/reports/2010s/CONLOG_Final_Report_17Jun14.pdf.

22

DOD directive requires its components to use contractors “in appropriate situations.” DOD, Directive 3020.49

§ 1.2(d) (updated Mar. 18, 2022).6

“[O]perational contract support strengths that have

proved critical to [military] operations include flexibility, adaptability to unknown requirements, ability to

rapidly adapt to change, surge capacity, access to experienced workers, and individual continuity in-theater.”

Contractor Logistics Report 23; see also, e.g., National

Research Council of the National Academies, Force

Multiplying Technologies for Logistics Support to Military Operations 129 (2014) (“In areas where distance

plays a large factor, contractors can become available

days, if not weeks, before military units can carry out

critical sustainment operations.”).7 And contractors often provide these advantages at a small fraction of what

the government would spend to provide them itself. See,

e.g., DOD, Report of the Defense Science Board Task

Force on Improvements to Services Contracting 12

(Mar. 2011) (“For expeditionary logistics support, when

considering all costs over a 20‐year period, private sector competitive procurement was projected to be

roughly 90 percent less costly than using federal workers.”).8

The dynamics of defense contracting can be complex. Defense contracts often have long or indefinite duration and innumerable provisions spread across a base

contract and various subcontract documents that are

6

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/302049d.pdf?ver=2020-08-14-151206-757.

7

8

https://nap.nationalacademies.org/read/18832/chapter/1.

https://dsb.cto.mil/reports/2010s/ADA550491.pdf.

23

issued at various times over the contract’s life. Further,

such contracts typically incorporate various provisions

of the FAR, a lengthy regulation whose “terms are confusing, poorly defined, or undefined altogether,” Section

809 Panel, 1 Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations 18 (Jan.

2018),9 as well as various provisions of FAR supplements, such as the Defense Department’s DFARS, see

48 C.F.R. §§ 201.101 et seq.

The Army’s Logistics Civil Augmentation (“LOGCAP”) contracts are typical. Since 1992, the Army has

used these contracts to provide civilian support for its

military operations in Somalia, Haiti, Iraq, Afghanistan,

and other foreign theaters. Contractor Logistics Report

12-13 & fig. 3. The duties under each LOGCAP contract

(there have been five so far) are specified through a cascade of subcontract documents. The cascade begins with

the prime (or base) contract, which is often more than

100 pages long and which defines the basic framework

for the relationship. See CBO, Logistics Support for Deployed Military Forces (“Logistics Support”) 2-3 (Oct.

2005); Department of the Army, Logistics Civil Augmentation Program Support to Unified Land Operations § 1-1 (Aug. 2016).10 Next are a set of “task orders,”

which broadly “specify a schedule for the number of

troops to be supported at various future dates, their geographic location and dispersion within a theater, the

mix of services provided (within the overall menu

9

https://discover.dtic.mil/wp-content/uploads/809-Panel2019/Volume1/Sec809Panel_Vol1-Report_Jan2018.pdf.

10

https://www.cbo.gov/sites/default/files/109th-congress2005-2006/reports/10-20-militarylogisticssupport.pdf;

https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN2624ATP_4-10.1-000-WEB-1.pdf.

24

delineated in the contract), and the duration of the effort.” Logistics Support 6. It is common for the Army

to issue more than 100 task orders—often 10-15 pages

each—for a single base contract. Task orders might

cover, among other things: supply operations, such as

food, water, fuel, and spare parts; field operations, such

as dining and laundry facilities, housing, sanitation,

waste management, postal services, and activities for

morale and recreation; engineering and construction;

and support for communication networks, transportation and cargo services, and facilities maintenance and

repair. See id. at 6-7 & box 1.1; Contractor Logistics Report 13.

Within the LOGCAP task orders, the Army further

defines the contractor’s duties by issuing statements of

work and various modifications thereto, specified

through change orders and letters of technical direction.

See, e.g., Logistics Support 35. Modifications, which often range from 20 to 150 pages, are made frequently; a

single task order or statement of work might have hundreds of change orders and potentially thousands of letters of technical direction, see, e.g., id.

Petitioners’ approach to scienter would impose unmanageable burdens on contractors and jeopardize their

ability to provide the kind of operational support that

the military relies on. Given the volume, complexity,

and changing nature of the duties specified in many defense contracts, it would be impractical for contractors

to identify every ambiguity that is material to their

claims for payment and then conduct an “appropriate inquiry” into the meaning of each such term. In many instances, a contractor will simply not have the time or resources to recognize or fully appreciate the potential ambiguity, let alone to conduct an “inquiry” by consulting

with various “sources” on the meaning of the obligation.

25

The ambiguity and alternative interpretations might not

occur until the government or, more likely, a motivated

qui tam relator decides to assert an FCA violation, by

which point it will be too late: the contractor will already

have unwittingly established scienter under petitioners’

approach.

The threat of treble damages under the FCA for

such “failures” would compel defense contractors to fundamentally alter how they perform their duties. Contractors might need to assign numerous additional personnel to each contract to be hyper-vigilant for ambiguity arising under new terms or in new circumstances and

then, upon identifying potential ambiguity, to conduct

thorough inquiries into their meaning. That extra work

would increase the government’s contract costs and impede contractors’ performance, harming contractors’

ability to support the government’s operational needs.

Sometimes, performance might grind to a halt, as a contractor might be reluctant to undertake a certain action

until it resolved the ambiguity with the government—

lest it position itself either to not be paid later or to incur

FCA liability for the payment. Petitioners’ approach

would thus either undermine some of the primary benefits the government derives from relying on defense contractors or put contractors to a Hobson’s choice between

the risk of the government terminating the contract for

default and the risk of treble FCA liability. At that

point, the combined risks might begin to deter private

companies from contracting with the government entirely, to the public’s detriment.

26

III. IF THE COURT REJECTS THE SEVENTH CIRCUIT’S POSITION, IT SHOULD CAREFULLY LIMIT THE RELEVANCE OF

SUBJECTIVE UNDERSTANDING

For all the reasons discussed above and in respondents’ brief, subjective understanding should be irrelevant where a representation of compliance with an ambiguous statutory, regulatory, or contractual obligation

is true under a reasonable interpretation of that obligation. Contrary to petitioners’ and the government’s

claims, such a position would not permit claimants to violate the FCA with impunity. Representations of compliance with an ambiguous obligation could still violate

the FCA where the claimant’s interpretation was unreasonable or where the representation was false under any

reasonable interpretation. In those circumstances, the

unreasonableness of claimant’s interpretation or the utter falsity of the representation may make the claimant’s

subjective understanding of the obligation pertinent.

Thus, even under respondents’ approach, the FCA

would reach intentional fraud.

But even if the Court were to disagree and deem

subjective understanding relevant even when the representation of compliance was true under a reasonable interpretation, the Court should hold that, in that situation, scienter is established only if the claimant (1) intended to defraud the government or (2) believed its representation was false at the time it submitted the claim

and did not disclose to the government the interpretation on which its representation relied. See Commercial

Contractors, Inc. v. United States, 154 F.3d 1357, 1366

(Fed. Cir. 1998) (“If a contractor submits a claim based

on a plausible but erroneous contract interpretation, the

contractor will not be liable [under the FCA], absent

some specific evidence of knowledge that the claim is

27

false or of intent to deceive. … [W]hen the contractor’s

purported interpretation of the contract borders on the

frivolous, the contractor must either raise the interpretation issue with the government contracting officials or

risk liability under the FCA ….”). That rule would minimize disruption of the existing contract principles discussed above and at least recognize that contractors will

rarely be able to develop the educated view of every ambiguous obligation that petitioners demand.

Moreover, the Court should also make clear that scienter is not automatically established by evidence that

the claimant recognized the government did or might

disagree with its interpretation. As explained above,

private parties can and must continue to be able to disagree with the government. See supra pp. 13-15. An

awareness that there is disagreement about the interpretation of an obligation does not equate to knowledge

that a representation of compliance is false. Indeed, “[i]n

the face of an undefined and ambiguous regulatory requirement, it is no wonder that employees of the regulated entity [might be] concerned.” Purcell, 807 F.3d at

290.

To that point, the evidence adduced against respondents shows only a prediction that the government

would disagree. For example, the record includes one

directive that a SuperValu Vice President sent another

executive to “make sure one of SuperValu’s attorneys

can defend our price match policy as not being our U and

C if they are pressing for a response.” Pet. Br. 11

(cleaned up). In other words, the SuperValu executive

wanted to make sure they were relying on a reasonable

interpretation of the “usual and customary” pricing

standard, even if not the interpretation SuperValu

thought the government might insist on. Another

28

remark “ask[ed] legal to ‘please chime in.’” Resp. Br. 13.

Such evidence refutes, rather than supports, scienter.

CONCLUSION

The decisions below should be affirmed. As respondents showed, proper interpretation of the FCA

and the constitutional principles of notice and lenity preclude punitive FCA liability when a claimant’s representation of compliance with an obligation was true under a

reasonable interpretation of that obligation, regardless

of the claimant’s subjective understanding. Separately,

longstanding contract principles—which Congress did

not intend the FCA to override—reinforce and expand

the leeway that government contractors must have under the FCA. Respect for those principles not only renders contractors’ subjective understanding of ambiguous contractual obligations irrelevant as long as their

conduct conformed to a reasonable interpretation of the

obligation, but also relieves contractors of any duty to

heed any supposedly “authoritative guidance” about or

to otherwise inquire into, ascertain, or predict the government’s actual or likely interpretation of those obligations. Even if the Court were to deem subjective understanding relevant, however, it should at least hold that

FCA scienter is established only if the claimant actually

believed its representation was false at the time it submitted the claim and did not inform the government of

the interpretation on which its representation relied,

and should emphasize that a claimant’s awareness that

the government might disagree with its interpretation

does not automatically show scienter.

29

Respectfully submitted.

FELICIA H. ELLSWORTH

EMILY W. ANDERSEN

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

MARCH 2023

DAVID W. OGDEN

Counsel of Record

RONALD C. MACHEN

DAVID M. LEHN

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

david.ogden@wilmerhale.com