0 1 THE MARTIN LAW FIRM, P.L.L.C. Whittier Ave., Suite 00 McLean, Virginia, 1 Kenneth A. Martin SHUGHART THOMSON & KILROY, P.C. N. Central Ave., Suite 00 Phoenix, Arizona 0 Telephone: (0 0-000 Facsimile: (0-0 Leon B. Silver Attorneys for Relator Austin Sallade United States of America ex rel. W. Austin Sallade vs. UNITED STATES DISTRICT COURT Plaintiff, Orbital Sciences Corporation, Defendant. DISTRICT OF ARIZONA No. CV 0-00 PHX NVW RELATOR S OPPOSITION TO DEFENDANT S MOTION TO DISMISS FOR FAILURE TO PLEAD FRAUD WITH PARTICULARITY (RULE (b RESPONSE TO MOTION OF DEFENDANT TO DISMISS FOR FAILURE TO PLEAD FRAUD WITH PARTICULARITY (Rule (b Case :0-cv-000-NVW Document 1 Filed /01/00 Page 1 of
0 1 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii I. MEMORANDUM OF POINTS AND AUTHORITIES... A. Background and Procedural History... B. A Qui Tam Complaint Must Link the Alleged Fraud to Specific False Claims Submitted to the Government... II. CONCLUSION... Case :0-cv-000-NVW Document 1 Filed /01/00 Page of i
0 1 CASES: TABLE OF AUTHORITIES th Corwin v. Marney, Orton, Inv., F.d, ( Cir.... Michaels Bldg. Co. v. Ameritrust Co., N.A., F.d, ( th Cir...., Mitchell Energy Corp v. Martin, F. Supp.,, (S.D. Tex.... Shushany v. Allwaster, Inc., F.d, 1 ( th Cir.... United States of America ex rel. Sean Bledsoe v. Community Health Systems, Inc., Sparta Hospital Corp.d/b/a White County Community Hospital, U.S. Ct. of Appeals th Circuit, 00 U.S. App. LEXIS 0 (September, 00... STATUTES: 1 USC...1 RULES: Federal Rule of Civil Procedure rule (a...,,,, Federal Rule of Civil Procedure (b...1,,,,,, MISCELLANEOUS: Bledsoe, 00 U.S. LEXIS 0 at 1, 1... Bledsoe, 00 U.S. LEXIS 0 at,... Bledsoe at... Case :0-cv-000-NVW Document 1 Filed /01/00 Page of ii
0 1 Case :0-cv-000-NVW Document 1 Filed /01/00 ii Page of
0 1 THE MARTIN LAW FIRM, P.L.L.C. Whittier Ave., Suite 00 McLean, Virginia, 1 Kenneth A. Martin SHUGHART THOMSON & KILROY, P.C. N. Central Ave., Suite 00 Phoenix, Arizona 0 Telephone: (0 0-000 Facsimile: (0-0 Leon B. Silver Attorneys for Relator Austin Sallade United States of America ex rel. W. Austin Sallade vs. UNITED STATES DISTRICT COURT Plaintiff, Orbital Sciences Corporation, Defendant. DISTRICT OF ARIZONA No. CV 0-00 PHX NVW RELATOR S OPPOSITION TO DEFENDANT S MOTION TO DISMISS FOR FAILURE TO PLEAD FRAUD WITH PARTICULARITY (RULE (b RESPONSE TO MOTION OF DEFENDANT TO DISMISS FOR FAILURE TO PLEAD FRAUD WITH PARTICULARITY (Rule (b W. Austin Sallade ( Sallade, the qui tam relator in this False Claims Act case, opposes the Defendant s Motion to Dismiss for Failure to Plead Fraud with Particularity (Rule (b. Sallade has pled with particularity in his Complaint consistent with Title 1 USC. By providing details of first-hand Case :0-cv-000-NVW Document 1 Filed /01/00 Page of 1
0 1 knowledge by direct observation and communications as an employee of Orbital, Sallade not only discloses specific incidents of fraud, but he also discloses the existence of a pervasive scheme by Orbital to defraud the government in multiple contract settings. In his Complaint, Sallade discloses detailed examples of fraud sufficient to satisfy the requirements of the Federal Rules of Civil Procedure and (b. Alternatively, if the court disagrees, Sallade requests leave to amend his complaint to add additional details if necessary. In support of his Opposition, Sallade provides the following memorandum of points and authorities. I. MEMORANDUM OF POINTS AND AUTHORITIES The Court should deny Defendant s Motion to Dismiss because Sallade has pled with specificity and particularity the facts giving rise to his fraud allegations in his complaint. In his complaint Sallade discloses pervasive fraudulent scheme related to Orbital s accounting methods that touch every government contract that Orbital performs, and that has cost the United Sates and its taxpayers many millions of dollars. Sallade discloses four separate contracts and examples of Orbital s fraudulent accounting practices and scheme in his Complaint: The NSPO ROC/Taiwan contract ( ROCSAT, a firm fixed price contract under which Orbital unlawfully initiated Independent Research and Development ( IR&D projects and charged them as indirect costs instead of as direct costs allocated to the ROCSAT Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 project. This unlawful assignment of costs resulted in an estimated $,000,000.00 in indirect costs paid to Orbital, which should have been included in the fixed price contract. As a subcontractor to Boeing, Inc., who contracted with the US Government Missile Defense Agency, Orbital further subcontracted with ATK Aerospace Company, Inc. to acquire rocket launch motors. Orbital was notified and understood that in order to meet contract needs, ATK needed to increase its production capacity. In order to do so, ATK billed costs for increased productivity to Orbital who passed the costs on to Boeing, and ultimately, the United States government. There was no disclosure by Orbital that it billed the Government the government to pay for an increased production capacity for ATK Furthermore, Orbital characterized its costs under its contract with Boeing as either direct or indirect in order to unlawfully increase its cost recovery under its cost plus contracts and its profitability under its fixed price contracts, all at the government s expense. Orbital misappropriated government property under a fixed price incentive contract with the Air Force (the Orbital Sub-Orbital Program (OPS 1. Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 Orbital also subcontracted with Boeing for the Capability Enhancement I ( CE I contract under Boeing s Ground Missile Defense program. After suffering under-runs performing two earlier subcontracts with Boeing, Orbital intentionally concealed the underruns when it competed for a follow-on contract in order to unlawfully inflate its estimated costs to perform the follow-on CE I subcontract with Boeing. Orbital later passed this cost onto the United States Government via Boeing s prime contract. Federal Rule of Civil Procedure (b states: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Rule (b is to be harmonized with the general principles of Federal Rule of Civil Procedure, which requires only that a complaint give the defendant fair notice of what plaintiff s claim is and the grounds upon which it rests. United States of America ex rel. Sean Bledsoe v. Community Health Systems, Inc., Sparta Hospital Corp. d/b/a White County Community Hospital, U.S. Ct. of Appeals th Circuit, 00 U.S. App. LEXIS 0 (September, 00, Michaels Bldg. Co. v. Ameritrust Co., N.A., F.d, ( th Cir.. Federal Rule of Civil Procedure rule (a states (emphasis added: (a Claims for Relief. A pleading which sets forth a claim for relief, whether an Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 original claim, counterclaim, cross-claim, or third-party claim, shall contain (1 a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, ( a short and plain statement of the claim showing that the pleader is entitled to relief, and ( a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. The harmonization of Federal Rules of Civil Procedure (b and therefore requires a balance between specificity and a short and plain statement of the grounds upon which the complaint is based. This has led to decisions wherein the application of Rule (b is considered to be flexible and dependent upon the circumstances of the litigation at bar. Shushany v. Allwaster, Inc., F.d, 1 ( th Cir.. When harmonized with Rule, the purpose of Rule is not to introduce formalities to the pleading but to provide defendants with more specific notice as to the particulars of their alleged misconduct. See Michaels Bldg. Co v. Ameritrust Co., N.A., F.d, ( th Cir.. Mitchell Energy Corp v. Martin, F. Supp.,, (S.D. Tex. (a complaint need not set forth all facts pertinent to a case in order to meet the heightened pleading standard of Rule (b; see also Corwin v. Marney, Orton, Inv., F.d, ( th Cir. (although Rule (b calls for fraud to be pled with Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 particularity, the allegations must still be as short, plain, simple, direct and concise as is reasonable under the circumstances. According to Bledsoe, a complaint by a relator in a qui tam case is sufficient under Rule (b if it alleges the time, place, and contents of the alleged misrepresentation on which he relied, the fraudulent scheme, the fraudulent intent of the defendants, and the injury resulting from the fraud and enables the defendant to prepare an informed pleading responsive to the specific allegations of fraud. Bledsoe, 00 U.S. LEXIS 0 at 1. Where a corporation is the defendant in a false claims action, the relator does not need to allege the specific identify of the natural persons within the defendant corporation who submitted the false claims. Bledsoe, 00 U.S. App. LEXIS 0 at 1. If a fraudulent scheme is alleged, the court should require, at most, that the relator provide some examples of fraudulent conduct. There are valid reasons for not requiring that relator to plead every instance of fraud when the relator s allegations encompass many allegedly false claims over a substantial period of time, this is reasonable primarily to advance the goal of logistical efficiency. Bledsoe, 00 U.S. App. LEXIS 0 at,. In Bledsoe the Court also held that where the relator pleads a complex and far-reaching fraudulent scheme with particularity, and provides examples of specific false claims submitted to the government pursuant to that scheme, a relator may proceed to discovery on the entire fraudulent scheme. (Id.. Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 While the concept of a false or fraudulent scheme should be narrowly construed, examples that a Relator provides that will support more general allegations of fraud to the extent that such examples are representative samples of the broader class of claim are adequate to enable the defendant to infer with reasonable accuracy the precise claims at issue. This affords the defendant the protections of Rule (b while allowing relators to pursue complex and farreaching fraudulent schemes without being subjected to onerous pleading requirements. Indeed, if the premise of a qui tam defendant is to encourage an individual to come forth in extenuating circumstances to report on an injustice, creating obstacles at the time of pleading only serves to dissuade one from making the injustice known. Requiring the plaintiff to provide particulars beyond a few well-placed examples, then, is not necessary and is actually contrary to the need for adherence to Federal Rule of Civil Procedure, which requires a short and plain statement of the claim. In this case, Sallade s allegations are based on direct observation and first hand involvement in conversations he was privy to as a Senior Director of Finance of Defendant s Launch Systems Group. The Defendant s Motion to Dismiss For Failure to Plead Fraud with Particularity (Rule (b does not consider the special situation that exists with a corporate defendant accused of multiple incidences of fraud, and indeed a pervasive scheme of fraudulent Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 conduct over an extended time period. Plaintiff has provided representative samples of fraud through the descriptions and details of four different government contracts and subcontracts under which Orbital defrauded the federal government by its pervasive accounting and procurement fraud scheme. These examples are sufficient and adequate to allow the defendant to infer with reasonable accuracy (Bledsoe, at the breadth, scope and nature of the claims Sallade asserts.. A. Background and Procedural History The Defendant, Orbital, was founded in and has substantial operations in Arizona, Virginia, California and Maryland. Its business consists of the development and manufacture of small space and rocket systems. As such, the bulk of Orbital s work is in the area of Government Contracts. Sallade, a qui tam relator, became the senior finance executive at Orbital s Launch Systems Group (LSG in July 00. His responsibility was to oversee the LSG s cost accounting and financial reporting systems, its cost estimating and cost proposal preparation efforts and its budget forecasting function. He maintained Orbital s internal financial corporate controls and helped to restructure Orbital's indirect cost pools and helped author its Cost Accounting Disclosure Statement. (CASDS. A CASDS is a statement provided by a contractor to the government that discloses its cost accounting methods and practices. Once disclosed, the contractor is required to consistently adhere to and apply its disclosed accounting methods to ensure fair and consistent accounting treatment of its costs incurred while Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 performing its government contracts. The scheme Sallade alleges as to Orbital is its pervasive manipulation and misapplication of its disclosed cost accounting methods to illegally increase its cost recovery under its federal government contracts and subcontracts at the taxpayers expense. As Sallade alleges, Orbital intentionally and systematically acted to increase its cost recovery under its cost reimbursement type contracts and its profitability under its fixed price contracts by shifting its costs incurred between its direct and indirect cost accounts to achieve increase its cost recovery under its cost reimbursable type contracts and the profitability of its fixed price contracts. Sallade commenced employment with Orbital as its Senior Director of Finance. However, the actual timeframe of Defendant s fraudulent activity predates the time of Sallade s employment because the improprieties that Sallade reported to Orbital s senior managers were those already in existence with Sallade commenced his employment with the Company, and they continued throughout his employment up until the time of Sallade filed his FCA claim in February 00. Because Orbital commenced its fraudulent accounting scheme before it employed Sallade, and continued them throughout the entire time of his employment, there is no other specific start date than the dates of Sallade s employment as alleged. Discovery is needed to further pinpoint exactly when Orbital first conceived of and employed its fraudulent accounting and billing schemes. Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 Where is within the offices of Orbital, and in related corporate meetings and settings where such financial business matters were discussed, and How is detailed in the complaint wherein Sallade discloses the improper cost accounting methods that Orbital employed to misallocate and misclassify costs as direct or indirect with the view to increase its cost recovery and profitability at the Government s expense. In this regard, Sallade discloses specific contracts, time periods, personnel and practices as examples of the broader scheme that it alleges. B. A Qui Tam Complaint Must Link the Alleged Fraud to Specific False Claims Submitted to the Government The plaintiff provides specific details about Orbital s false claims made to the federal government. At Count I Sallade describes specific conduct under the NSPO ROC/Taiwan contract ( ROCKSAT beginning in with its proposal in 001 to perform a fixed price satellite launch services contract for the Taiwan government. The complaint discloses with particularity how Orbital charged the federal government for independent research and development costs that it actually incurred to perform its ROCKSAT contract for the Taiwan government. Because Orbital included the same costs in its overhead accounts billed to the government, Orbital actually collected payments twice for the same work. As a consequence of Orbital s fraud, Orbital realized an estimated $,000,000.00 windfall at the government s expense. Therefore, in this count, Sallade has Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 detailed Orbital s fraudulent scheme with particularity and he places a dollar estimate on the cost of that fraud to the government at $,000,000. As another example of Orbital s fraudulent scheme, in Count II of his complaint, Sallade discloses that Orbital illegally used government money to acquire infrastructure and capital for its business that it unlawfully charged the government for. Under its subcontract with Boeing, Orbital purchased capital for its business operations and then illegally sent invoices to the government to cause the government to pay for it. Orbital used the capital to support its general business operations. Under Orbital s CASD, Orbital had no right to direct charge the government for these costs, yet this is what Orbital did, thereby unlawfully increasing its manufacturing capability at the government s expense. As Sallade alleges in his Complaint, as a direct result of Orbital s fraud, the government was damaged by least $1,000,000.00. In Count III of his Complaint Sallade describes Orbital s systematic misclassification of costs under its Ground Missile Defense program and subcontract with Boeing to illegally increase its cost recovery. Initially, Orbital purchased four articles of test equipment that it appropriately recorded as fixed assets of the company, meaning that the cost of such equipment was to be recovered by Orbital over time as an indirect depreciation expense included in its overhead rates. However, Orbital later purchased additional items of the virtually identical test equipment. However, when it did so this time it classified Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 the test equipment as special and billed Boeing, (and indirectly the Government directly for it. Orbital s Senior Vice President, Jim Utter, directed that the subsequent equipment purchases be recorded and billed to the government to maximize Orbital s cost recovery. In so doing, Mr. Utter actually undertook to justify his directive by stating his opinion that Orbital could not be expected to make capital investments without any guarantees of future contracts from the government. In other words, Mr. Utter knew that his decision to bill the government to satisfy Orbital s capital investment needs was wrong. Nevertheless, he internally reported that Orbital would convince the government that this additional test equipment should be directly charged to the Boeing subcontract. By his own actions, therefore, Mr. Utter revealed his purposeful and knowing submission of false claims to the federal government. In his Complaint, Sallade estimates the damage to the federal government suffered as a consequence at approximately $1,000,000.00. In Count IV of his Complaint, Sallade describes specific instances of conversion of government property by Orbital and its intentional misinterpretations to sustain and conceal them. Under its OSP 1 contract Orbital asserted a clause in the contract that stated; the contractor shall provide, (not deliver, facilities, tools, test equipment, and other items. Orbital intentionally misinterpreted the provision to mean that it could acquire facilities (support and test equipment, at the government s expense, and then keep the equipment as its Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 own. When confronted about this, Orbital reclassified the equipment as special test equipment to justify the fact that the government originally paid for it. Had Orbital appropriately classified the equipment as common equipment, it would have had to reimburse the government for its cost. However, it improperly classified the equipment as special test equipment and charged the government directly to pay for it. Because Orbital was in possession of the equipment without having to pay for it when Orbital competed for the OSP contract, it was able to do so without including costs in its proposal to purchase the equipment. As a consequence, Orbital obtained an unfair competitive advantage during the government s source selection for the OSP contract. Orbital s Senior Vice President actually boasted internally about this by stating that although the government had reclaimed ownership rights in the property, because Orbital was able to retain possession of it, it avoided having to include the equipment costs in its OSP proposal. Sallade estimates that this misappropriation of property by Orbital cost the ten million dollars. Count V describes a general practice by Orbital to hire and classify employees as supplier management or supplier quality personnel, and then to direct charge them to Orbital s subcontract with Boeing. Orbital internally stated that it would not have hired many of the employees if it did not have the opportunity to charge to the Boeing subcontract. However, the function these employees performed was an overhead function that Orbital routinely charged for Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 on an indirect basis. In this case however, because Orbital had available cost ceiling under its Boeing subcontract, it used that contract to hire additional employees who did not actually work directly on the Boeing subcontract. Sallade estimates $1,000,000.00 in damages but expects the actual value of Orbital s fraud to far exceed after it obtains discovery from Orbital. In Count VI of his Complaint Sallade discloses Orbital s defective pricing scheme during its performance of its Capability Enhancement ( CE I contract under Boeing s Ground Missile Defense ( GMD program. Commencing in the spring of 00, Orbital engaged the government in price negotiations related to the CE 1 contract. Earlier however, Orbital had performed two other subcontracts for Boeing under the larger GMD program, the Orbital Boost Vehicle and the Test Bed subcontract. The Orbital Boost Vehicle and Test Bed contracts each experienced cost under-runs. Instead of reporting the under- runs to the government, at the direction of Orbital s Senior Vice President Jim Utter, Orbital intentionally withheld disclosing the under-runs to the government to justify its proposal of higher costs to perform the CE I contract. This active concealment of its cost and pricing data by Orbital violated the Truth in Negotiations Act. It s deferred reporting of its costs also enabled Orbital to inflate its estimated costs and the price of its CE I contract to the government. Sallade alleges damages to the government due to Orbital s defective pricing of $,000,000.00. Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 At Count VII of his Complaint, Sallade recites Orbital pervasive practice to charge the government for spares that the company did not need to purchase. Orbital used the spares to create paid inventory accounts. This violates Material Management and Accounting System policies and procedures. Estimated damages from this fraudulent property management and inventory practice is estimated at not less than $00,000.00. Orbital pleads each example of Orbital s fraudulent accounting methods and scheme with particularity. He discloses who, what, when, where, and how in relation to each claim. Sallade bases his allegations on actual knowledge of Orbital s accounting practices that he learned about while employed by Orbital as its senior finance executive. For its second argument, the Defendant reiterates the substance of the arguments that it asserts in its first argument, that a Qui Tam Complaint Must Comply with Rule (b by Identifying with Particularity the Circumstances of the Alleged Fraud and the Relevant False Claims. Sallade has already responded to Defendant s first argument, and incorporates it here by reference in response to Defendant s second argument. As demonstrated, Sallade discloses the specific contracts, individuals, practices, and time periods implicated by Orbital s fraud. In, Bledsoe, recently decided in the Sixth Circuit, the Court makes it clear that the objective of the original complaint is to give the defendant adequate notice to understand the charges being brought against him, while still adhering to Fed. Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 Rules Civ. Procedure Rule for a concise and plain statement. Sallade has disclosed the contracts and subcontracts implicated by Orbital s fraud. Orbital has access to all of their accounting records, personnel records, contract correspondence, internal e-mails, audit reports, and meeting minutes that pertain to these contracts, and Sallade s allegations. The time period for all activities, if not more specifically identified, occurred during the two or three-year period before Sallade became employed by Orbital in July 00, and on information and belief, continue through this date. Sallade discloses specific details of the fraudulent accounting practices that he alleges. Sallade actually brought his allegations to the attention of Orbital s senior managers and because of this, he was demoted. The level of specificity that the defendant presents as being necessary is not borne out by recent case law. Especially in the case of a corporate defendant where the fraudulent activities alleged are pervasive and occurred over a period of years. Under these circumstances in the instance of a qui tam case, flexibility exists in the application of Rule (b and representative samples of fraudulent activity disclosed in a complaint is deemed sufficient to meet the threshold pleading with particularity requirement. Based on the allegations disclosed in Sallade s Complaint, Defendant has more than adequate notice of the claims asserted, and suffers no inability to respond to them. As further evidence of this point, Orbital has already Case :0-cv-000-NVW Document 1 Filed /01/00 Page 0 of
0 1 defended the allegations made in communications it has had with federal government criminal and civil investigators. There is no requirement that Sallade should have to plead each specific incidence of fraud with specificity as the defendant suggests. Also, the nature of a qui tam case implies that the relator may not possess every detail of every fraud perpetrated by the defendant, but knows enough about specific incidences within that fraudulent behavior to bring the quit tam case to light and present representative examples to lead the case to a discovery phase. II. CONCLUSION The Motion to Dismiss for Failure to Plead Fraud with Particularity should be denied. Plaintiff s complaint contains adequate detail to satisfy even the heightened burdens of Fed Rule Civ. Procedure (b when dealing with false claims. Furthermore, the level of specificity required for a complaint against a corporate defendant accused of a pervasive and long lasting fraudulent scheme permits some flexibility in the seemingly rigid Rule (b standard, and the Fed. Rule of Civ. Procedure standard must be considered and harmonized with Rule (b in cases of this complexity. Sallade has presented representative samples of fraudulent behavior and certainly presents adequate notice to the defendant about the respective claims asserted against it. Case :0-cv-000-NVW Document 1 Filed /01/00 Page 1 of
0 1 If the Court disagrees, it should grant Sallade leave to amend his complaint to overcome any pleading defects the Court determines to exist. RESPECTFULLY SUBMITTED this 1 st day of November, 00. THE MARTIN LAW FIRM, P.L.L.C. By /s/ Kenneth A. Martin Kenneth A. Martin THE MARTIN LAW FIRM, P.L.L.C. Whittier Ave., Suite 00 McLean, Va. 1 SHUGHART THOMSON & KILROY, P.C. Leon Silver Security Title Plaza N. Central Ave., Suite 00 Phoenix, Arizona 0 Attorneys for Relator Austin Sallade Case :0-cv-000-NVW Document 1 Filed /01/00 Page of
0 1 CERTIFICATE OF SERVICE I hereby certify that on November 1, 00, I served the attached document by email and U. S. Mail on the following: : Arnold M. Auerhan Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Washington, D.C. 00 Mark Wenker United States Attorney s Office 0 North Central Avenue, Suite 00 Phoenix, Arizona 00-0 Attorney for Plaintiff United States of America STEPTOE & JOHNSON LLP 01 East Washington Street, Suite 00 Phoenix, Arizona 00- Telephone: (0-00 Facsimile: (0 - Lawrence Allen Katz Peter S. Kozinets MCKENNA LONG & ALDRIDGE LLP 00 K Street, NW Washington, D.C. 000 Michael G. Scheininger /s/ Kenneth A. Martin Case :0-cv-000-NVW Document 1 Filed /01/00 Page of