Morsell v. Symantec Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ex rel. :
LORI MORSELL, et al., :
:
Plaintiffs, : Civil Action No.: 12-800 (RC)
:
v. :
: Re Document Nos.: 364, 365
GEN DIGITAL, INC. :
(f/k/a SYMANTEC CORPORATION; :
f/k/a NORTONLIFELOCK INC.), :
:
Defendant. :
MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE UNITED STATES’ MOTION TO AMEND AND
SUPPLEMENT THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW; DENYING
CALIFORNIA’S MOTION TO AMEND AND SUPPLEMENT THE COURT’S FINDINGS OF FACT AND
CONCLUSIONS OF LAW

I. INTRODUCTION

Relator Lori Morsell brought this qui tam action in 2012 alleging that her employer,

Symantec, 1 had violated the False Claims Act in connection with a General Services

Administration (“GSA”) Master Award Schedule (“MAS”) contract. At the highest level, the

action alleged that Symantec did not appropriately disclose to GSA non-standard discounts and

rebates offered to comparator customers, undermining GSA’s ability to negotiate favorable

pricing. The United States moved to intervene, as did the states of California and Florida, and

Morsell elected to pursue claims on behalf of New York. See United States’ Notice of Election

to Intervene, ECF No. 21; Notice of the People of the State of California of Election to Intervene,

1
During the litigation, Symantec’s name changed to NortonLifeLock. It has since
changed again to Gen Digital. The Court herein refers to Defendant interchangeably as
Symantec or Norton.
ECF No. 28; Notice of Election to Intervene by State of Florida, ECF No. 29; Notification that

Relator Intends to Proceed with Action on Behalf of New York State, ECF No. 40. After

exhaustive litigation, the United States and California 2 proceeded against Symantec to a four-

week bench trial conducted in February and March 2022. Following the trial, the parties

submitted proposed findings of fact and conclusions of law and related briefing. Pursuant to

Federal Rule of Civil Procedure 52(a)(1), the Court issued its Findings of Fact and Conclusions

of Law (the “FFCL”) on January 19, 2023. See United States ex rel. Morsell v. NortonLifeLock,

Inc., 651 F. Supp. 3d 95 (D.D.C. 2023). The Court entered partial judgment in favor of the

United States in the amount of $1,229,950.16 in damages and penalties and partial judgment in

favor of California in the amount of $379,500 in penalties. Id. at 108. The United States now

moves under Federal Rules of Civil Procedure 52(b) and 59(a)(2) to amend and supplement the

FFCL, see United States’ Mot. Amend and Suppl. Findings Fact & Conc. Law (“U.S.’s Mot.”),

ECF No. 364, and California moves separately to join the United States’ motion as to

California’s claims, see State of Cal.’s Mot. Amend and Suppl. Findings Fact & Conc. Law

(“Cal.’s Mot.”), ECF No. 365. 3 For the reasons set forth below, the United States’ motion is

granted in part and denied in part and California’s motion is denied.

2
Prior to trial, Florida and Norton reached an agreement resulting in a stipulated
dismissal of Florida’s claims with prejudice. See Stipulation of Vol. Dismissal with Prejudice by
Florida, ECF No. 267. At the start of the trial, the parties informed the Court that Morsell and
Norton had reached a tentative settlement as to the claims brough on behalf of New York, which
Morsell later voluntarily dismissed with prejudice. See Stipulation of Vol. Dismissal with
Prejudice, ECF No. 358.
3
Due to the nature of California’s submission, the Court herein focuses principally on the
United States’ motion, leaving its independent consideration of California’s motion for the end.

2
 II. FACTUAL BACKGROUND

The Court presumes familiarity with and herein incorporates the background information,

including the factual overview, procedural history, and regulatory framework, detailed in the

FFCL. See Morsell, 651 F. Supp. 3d at 108–13, 118–21. While the Court also presumes

familiarity with the findings of fact and conclusions of law comprehensively laid out in the

FFCL, it briefly reiterates the aspects most relevant here. The United States brought both False

Claims Act (“FCA”) and common law claims, but the Court focuses only on the FCA claims, as

the United States does not challenge the Court’s findings as to the common law claims. Under

the FCA, the United States brought presentment and false statements claims (Counts I & II),

indirect presentment claims (Counts III & IV), and concealment, or “reverse” FCA, claims

(Count V). See United States’, California’s, Florida’s, & Relator’s Omnibus & Restated Compl.

in Intervention ¶¶ 248–285, ECF No. 41.

With respect to the presentment and false statements claims, the Court first found that

Symantec contemporaneously held an objectively reasonable understanding of the Price

Reduction Clause (“PRC”) that was “much less comprehensive” than the United States’

interpretation. Morsell, 651 F. Supp. 3d at 170–73. Specifically, the Court recognized as

objectively reasonable Symantec’s “interpretation that an eSPA approval with different terms

and conditions would remove a sale from the scope of the PRC.” Id. at 171. However, the Court

found that “Symantec did not believe the eSPA exception to be limitless,” so “to the extent that a

sale had no eSPA approval at all or had an eSPA that did not provide a meaningful justification,

. . . it would have violated the PRC even when accounting for Norton’s reasonable interpretation

of the contract.” Id. at 172–73. Accordingly, even under this narrower view, the Court found

3
that Symantec violated the FCA when it knowingly failed to inform GSA about certain

transactions that would have triggered the PRC. Id. at 173–78.

The Court next held that Symantec made false Commercial Sales Practice (“CSP”)

disclosures. Id. at 178. Specifically, as relevant here, the Court found that Symantec violated

the FCA through its submission of the Frequency Chart, which “was held out as a summary of

non-published discounts for all Symantec and Veritas products, when in fact it showed all

discounts for only Symantec products, making it both over- and under- inclusive,” and through

its “failure to disclose Symantec’s rebate programs,” which “further rendered the CSPs false.”

Id. at 178–79. Relatedly, the Court also found that, under the Modifications Clause, 4 “each

subsequent certification asserting that the CSPs had not changed was likewise false” and violated

the FCA. Id. at 183–84. Finally, the Court found that Symantec fraudulently induced the GSA

contract, as “the falsities in the Frequency Chart and lack of rebate disclosures were the actual

cause of Dixon’s decision to accept the GSA contract at the prices she accepted.” Id. at 187. 5

With respect to the indirect presentment claims, the Court found Symantec not liable.

See id. at 187–89. Specifically, the Court found that the United States had “not provided enough

evidence to conclude that Symantec’s pricing also impacted the pricing on the resellers’ own

GSA contracts.” Id. at 189. Nor had the United States shown that Symantec’s false CSPs were

material to the resellers’ negotiations, as the Court was without evidence of “what other

information, if any, the resellers provided during their own negotiations.” Id.

4
When a contractor submits changes to a MAS contract, such as adding or deleting items
or reducing prices, the Modifications Clause “requires the contractor to submit either updated
CSPs for the new items or provide confirmation that the previous CSPs have not changed.”
Morsell, 651 F. Supp. 3d at 120.
5
Gwendolyn Dixon was the GSA contract specialist with responsibility over the
Symantec solicitation during most of the period during which its MAS contract was negotiated.
See Morsell, 651 F. Supp. 3d at 130.

4
 By contrast, with respect to the reverse FCA claims, the Court found Symantec liable. Id.

at 190. Specifically, after explaining that the PRC is “the kind of classic self-executing

obligation . . . to extend price reductions,” the Court concluded that Symantec failed to fulfill that

obligation even under its narrower view of the PRC that the Court found objectively reasonable.

Id. at 189–90.

Turning to damages and penalties, the Court first explored two possible categories of

damages: (1) discount damages, or the amount less GSA would have paid if Symantec had not

made false CSP disclosures concerning discounts offered to comparator customers, had not made

false implied certifications of compliance with the CSP and PRC requirements concerning

discounts when submitting claims throughout the life of the contract, and had not failed to offer

the price reductions to which GSA was entitled under the PRC during the life of the contract; and

(2) rebate damages, or the amount less GSA would have paid if Symantec had not made false

CSP disclosures concerning its rebate programs. Id. at 190–95.

With respect to discount damages, the Court first found, referring to the United States’

damages expert, that “nothing in Dr. Gulley’s testimony or any other testimony allows the Court

to determine with reasonable certainty the degree of difference in the GSA discount that resulted

from Symantec’s material and fraudulent misrepresentations in the negotiations.” Id. at 191.

Accordingly, the Court explained that “[d]etermining how much of a discount GSA would have

received had the CSP disclosures been complete and accurate would amount to little more than

pulling a number out of thin air.” Id. at 192. By extension, it found that the same problem

plagued the false implied certifications concerning the CSPs under the Modifications Clause.

See id. at 193. Turning to the PRC-triggering violations, the Court found that two “deficiencies”

in Dr. Gulley’s analysis rendered it impossible for the Court to “untangle whatever actual

5
damages GSA sustained.” Id. at 194. First, the Court found that Dr. Gulley’s analysis was not

susceptible to accurate recalibration to contour, with reasonable certainty, Symantec’s narrower

view of the PRC that the Court found objectively reasonable. Id. at 193. Second, the Court

“disagree[d] with Dr. Gulley’s approach of having ignored the order level discounts for each line

item when calculating the ‘average’ discount, which resulted in an unreasonably inflated average

should-have-received discount.” Id.

With respect to rebate damages, however, the Court found that there was sufficient record

evidence to make a reasonably certain damages estimate. The Court first identified 3% as a

“conservative estimate that is adequately supported in the record” of the rebate that GSA would

have received if Symantec had provided truthful information about its rebate programs. Id. at

195. The Court next adopted a “ballpark (and indeed exceptionally conservative) estimate to

serve as a baseline for the rebate damages.” Id. Applying the 3% rebate to that ballpark

estimate, the Court calculated a rebate damages award of $356,316.72, trebled to $1,068,950.16.

See id.

Moving to civil penalties, the Court first explained that its “conclusions on liability

entitle[d] the United States to penalties under the FCA regardless of whether they also prove

actual damages.” Id. at 195. Next, the Court noted that “the United States’ request for civil

penalties on the false claims is . . . inextricably intertwined with its discount damages

calculations.” Id. at 196. Thus, by failing to present adequate proof to permit identification of

the sales on which it should have received a discount, the United States left the Court with “no

way of determining how many claims were ‘false.’” Id. However, because “the same conduct

underlie[d] the United States’ claims under both the presentment and false statements theories of

6
liability,” id., the Court assessed statutory penalties of $11,000 for each of twenty-one identified

false statements, for a total of $231,000, id. at 197.

III. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 52(b)

Under Federal Rule of Civil Procedure 52(b), a party may file a motion requesting that

the Court “amend its findings—or make additional findings—and . . . amend the judgment

accordingly.” Fed. R. Civ. P. 52(b). This Rule “permits the trial court to correct manifest errors

of law or fact, make additional findings or take other action that is in the interests of justice.”

Ashraf–Hassan v. Embassy of France, 185 F. Supp. 3d 94, 108 (D.D.C. 2016) (quoting Bigwood

v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 318 n.2 (D.D.C. 2011)). “The decision to

amend findings or the judgment is committed ‘to the sound discretion of the trial judge.’”

Paleteria La Michoacana v. Productos Lacteos Tacumbo S.A. De C.V., 247 F. Supp. 3d 76, 91

(D.D.C. 2017) (quoting Material Supply Int’l, Inc. v. Sunmatch Indus. Co., No. 94-cv-1184, 1997

WL 243223, at *2 (D.D.C. May 7, 1997)). “Accordingly, the moving party ‘bears a heavy

burden in seeking to demonstrate clear error [or] manifest injustice necessitating amendment of

the judgment.’” FMD Restoration, Inc. v. Baistar Mech., Inc., 320 F.R.D. 320, 322 (D.D.C.

2017) (quoting Material Supply Int’l, 1997 WL 243223, at *2). “Rule 52 cannot be a substitute

for an appeal.” Salazar v. District of Columbia, 685 F. Supp. 2d 72, 75 (D.D.C. 2010); see also

Material Supply Int’l, 1997 WL 243223, at *2 (explaining that Rule 52 “is not an avenue for

relitigating issues upon which the moving party did not prevail at trial”).

B. Federal Rule of Civil Procedure 59(a)(2)

Rule 59(a)(2) provides that, “[a]fter a nonjury trial, the court may, on motion for a new

trial, open the judgment if one has been entered, take additional testimony, amend findings of

7
fact and conclusions of law or make new ones, and direct the entry of a new judgment.” Fed. R.

Civ. P. 59(a)(2). “A court should grant a motion under Rule 59(a)(2) only to correct manifest

errors of law or fact, or, in some limited situations, to present newly discovered evidence.”

Ashraf-Hassan, 185 F. Supp. 3d at 112 (quoting Chavez v. City of Albuquerque, 640 F. Supp. 2d

1340, 1343 (D.N.M. 2008)). “As with motions brought under Rule 52, ‘Rule 59 motions may

not be used to [relitigate] old matters, or to raise arguments or present evidence that could have

been raised prior to the entry of judgment.’” FMD Restoration, 320 F.R.D. at 323 (quoting

Salazar, 685 F. Supp. 2d at 75).

IV. ANALYSIS

The United States moves for relief in three “steps”, with each step containing multiple

sometimes interdependent arguments for relief. See generally U.S.’s Mot. The Court addresses

each argument in turn, noting where its analysis of one also bears on or obviates another. 6

A. “Step One”

The United States first argues that the Court made “tabulation errors, inconsistencies, and

omissions” that do not disturb the “overarching liability and damages reasoning” and for which

there is sufficient record evidence to correct. Id. at 5. Specifically, the United States argues that

the Court “mis-tabulated rebate damages,” “mistakenly concluded that the number of false

claims tainted by Symantec’s rebate fraud was contingent on the number of claims tainted by

Symantec’s discount fraud” for purposes of calculating civil penalties, and “erred in failing to

award the United States, at the very least, the ‘exceptionally conservative’ estimate of discount

damages it derived.” Id. at 5–6. It also argues that the Court failed to “address the United

6
Most significantly, as set forth below, the Court considers the United States’ “step
three” arguments by way of analyzing its “step one” arguments. See infra note 10.

8
States’ claim that Symantec violated the Second PRC Trigger by fixing and jumping customers

to Band E under the Rewards buying program.” Id. at 20.

1. Rebate Damages

As summarized above, in the FFCL the Court described at length the infirmities in the

evidence presented by the United States that rendered it impossible to calculate an estimate of

discount damages to a reasonable certainty. See Morsell, 651 F. Supp. 3d at 190–95. By

contrast, with respect to rebate damages, the Court found that there was a sufficient evidentiary

basis to support the United States’ request “to calculate 3% of its total damages to account for

the failure to disclose Symantec’s myriad rebating programs throughout the life of the contract.”

Id. at 195. The Court identified a complicating factor, however, in the fact that it had “not

awarded any discount damages to which it can apply that 3% number.” Id. Accordingly, the

Court, repurposing a set of assumptions employed by Symantec’s damages expert, Mr. Tucker,

to limit the universe of relevant transactions, calculated a “a ballpark (and indeed exceptionally

conservative) estimate to serve as a baseline for the rebate damages”—which came to

$11,877,224. Id. The Court applied the 3% rebate damages figure to that baseline for a total of

$353,316.72, and trebled that total to reach the rebate damages award of $1,068,950.16. Id.

The United States argues that the Court’s process to reach this figure was flawed from the

start. It explains that “a rebate is measured against a product’s sale price, not against the

discounts it received to derive that sales price.” U.S.’s Mot. at 6–7. Accordingly, it argues that

the Court “erroneously applied 3% against estimated discounts, not against the sales prices on

the Government’s orders.” Id. at 7. The United States uses a simple hypothetical to illustrate the

importance of this distinction:

For example, if the Court purchases a smartphone costing $100.00 and receives a 3%
rebate on that product, the Court’s rebate equals $3.00 (3% of 100). If the Court

9
 purchases the same smartphone a week later and it has been marked down to $90.00 with
a 3% rebate, the Court’s rebate on that second purchase would be $2.70 (3% of $90).
The Court’s rebate would not equal 3% of the $10.00 mark-down or discount (i.e., 30
cents).

Id. To correct the Court’s error, the United States proposes using U.S. Exhibit 359 to identify

the amount of total sales to GSA, less sales to resellers. 7 See id. at 7–9. U.S. Exhibit 359 is a

spreadsheet Dr. Gulley used to make “damages calculations on a per-government-sale basis,”

and therefore contains each GSA transaction. Trial Tr. at 3765 (Gulley), ECF No. 331. Using

U.S. Exhibit 359, the United States calculates the “total at-issue sales on Symantec’s Contract”

as $179,129,956.10. U.S.’s Mot. at 8. It applies 3% to that figure, yielding $5,373,898.68,

which, trebled, would sum to a rebate damages award of $16,121,696.04. See id. at 10.

The Court agrees that it erred in interpreting the United States’ rebate damages request.

The Court based its rebate damages calculation on its understanding that the “United States

ask[ed] the Court to calculate 3% of its total damages,” Morsell, 651 F. Supp. 3d at 195

(emphasis added), when in fact the United States requested to calculate “3% of the amounts the

Government contends it should have paid in total,” U.S.’s Prop. Findings Fact & Concs. Law

(“U.S. Prop. FF & CL”) at 124, ECF No. 347 (emphasis added). 8 This error in turn led the Court

to engage in the process to calculate its “exceptionally conservative,” “ballpark” estimate of

7
The Court found that Symantec was not liable for causing resellers to submit false
statements and claims. See Morsell, 651 F. Supp. 3d at 189 (finding for Symantec on Counts III
and IV, the indirect presentment claims).
8
Symantec argues that “[t]he government’s trial submission requested rebate damages of
3% off the discount damages awarded to the government, exactly as the Court calculated these
damages (correcting for the government’s failure to prove discount damages).” Gen Digital’s
Opp’n to Mots. Amend and Suppl. Findings Fact & Concs. Law (“Gen Digital’s Opp’n”) at 13,
ECF No. 367. But the very sections of the government’s trial submission it cites for this
proposition disprove it. See U.S. Prop. FF & CL at 103 (calculating rebate damages off the
amount “the United States should have paid in total”); id. at 124 (“To calculate [rebate damages],
the Court simply needs to take 3% of the amounts the Government contends it should have paid
in total”).

10
discount damages to use as the baseline off of which to calculate rebate damages. 9 Morsell, 651

F. Supp. 3d at 195. That too was error. The Court described at length the infirmities in the

United States’ damages presentation that left the Court unable to “determine with reasonable

certainty how much GSA would have paid had Symantec come clean about [the] originally false

CSPs.” Id. at 192–93; see id. at 192 (“Determining how much of a discount GSA would have

received had the CSP disclosures been complete and accurate would amount to little more than

pulling a number out of thin air . . . .”). Because the Court could not develop a reasonably

certain estimate of discount damages, it could not develop a reasonably certain estimate of the

should-have-paid price or, in turn, rebate damages. The substitution of ballpark estimation for

reasonable certainty was error. 10

9
The record includes sufficient evidence that the 3% rebate would have applied to all
sales, see Morsell, 651 F. Supp. 3d at 179 (noting, with citations to the record, that the GSA
Master Aggregator Rebate Program was the “most obviously relevant rebate program in effect”
at the time of contracting and “gave a 5% rebate to certain distributors in connection with any
GSA sale” (emphasis added)); Trial Tr. at 618:17–22 (Cochran), ECF No. 308 (confirming that
“back-end rebates were, essentially, tracking the total volume purchased by a reseller or
distributor in a time period and then calculating that total buy and then giving them a percentage
rebate for that volume” (emphasis added)), even as there were a variety of additional rebate
programs, some of which focused on particular resellers or product categories, see, e.g., U.S. Ex.
77 (email from Kimberly Bradbury describing rebate program targeted to a particular “product
category”).
10
The United States separately asserts that it now should be awarded as actual damages
the ballpark estimate that the Court originally used as a baseline off of which to calculate rebate
damages. See U.S.’s Mot. at 19. But the Court now finds that its attempt at ballpark estimation
for want of reasonable certainty was error. In doing so, it adheres to its finding that it “cannot
possibly untangle whatever actual [discount] damages GSA sustained from Dr. Gulley’s result”
and therefore that the United States is not entitled to discount damages. See Morsell, 651 F.
Supp. 3d at 194. Consequently, the Court also rejects the United States alternative arguments,
which constitute “Step Three” in its motion, to increase the ballpark estimate of discount
damages or else reverse the findings underlying the Court’s conclusion that it could not make a
reasonably certain estimate of discount damages. See U.S.’s Mot. at 39–45. These arguments
merely reflect disagreement with the weight accorded to and inferences drawn from certain
evidence, or the lack thereof, and as such do not state claims for relief under Rule 52 or Rule 59.
See Paleteria La Michoacana, 247 F. Supp. 3d at 91 (“A motion under Rule 52(b) ‘is not an
avenue for relitigating issues upon which the moving party did not prevail at trial.’” (citation

11
 Having concluded that its prior methodology for calculating rebate damages was flawed,

the Court must next determine whether sufficient evidence exists in the record such that the

Court may calculate a reasonably certain estimate of the United States’ rebate damages. The

United States contends that the record contains the requisite information to make such a

calculation. Specifically, the United States argues that rebate damages may be calculated by

taking total at-issue sales (i.e., total sales less reseller sales), see U.S.’s Mot. at 10 (identifying

“total at-issue sales on Symantec’s GSA contract” as the appropriate figure from which to

calculate rebate damages), and multiplying that number by 3%—the “conservative estimate” of

the rebate the United States would have received had Symantec disclosed all relevant

information regarding its rebate programs, Morsell, 651 F. Supp. 3d at 195.

The Court agrees that the approach outlined by the United States represents a supportable

method for calculating a reasonably certain estimate of rebate damages in this case. For one, the

Court agrees that the total amount of at-issue sales represents the proper starting point for such a

calculation. After all, that amount represents the sum of money that the United States actually

paid on Symantec’s contract. To be sure, the amount that the United States actually paid is

higher than the amount it should have and would have paid had Symantec disclosed and applied

all applicable discounts throughout the life of the contract. See U.S.’s Mot. at 10 n.2 (“Should

the Court award discount or Rewards damages, the total sales price used to calculate rebate

damages would be reduced.”). And as the United States’ smartphone hypothetical illustrates,

there is a strong theoretical argument for calculating rebate damages based on the should-have-

paid price rather than the actually-paid price. See id. at 7. But for purposes of calculating rebate

omitted); FMD Restoration, 320 F.R.D. at 323 (“As with motions brought under Rule 52, ‘Rule
59 motions may not be used to [relitigate] old matters, or to raise arguments or present evidence
that could have been raised prior to the entry of judgment.’” (citation omitted)).

12
damages in this case, any discrepancy between the amount that the United States actually paid

and the amount it should have paid is mitigated by two factors. The first is that the Court’s 3%

approximation of the United States’ likely rebate had Symantec disclosed all of its various rebate

programs is a “conservative estimate.” See Morsell, 651 F. Supp. 3d at 195. Second, the Court

has not (and will not) award discount damages. See id. at 190–94. Combined, these factors

more than compensate for the fact that the starting point for the rebate damages calculation is

higher than it would have been had the Government introduced sufficient evidence to enable the

Court to estimate the should-have-paid price.

Persuaded that the total price paid by the Government represents the proper starting point

from which to calculate rebate damages, the Court finds that the evidence admitted at trial shows

that the total at-issue sales amounted to $179,129,956.10. See U.S. Ex. 359. 11 From there, it

makes sense to apply a 3% rebate given the Court’s previous findings that (1) “it is near obvious

that GSA would have insisted” on receiving comparable rebates had it known of Symantec’s

various rebate programs and that (2) 3% is a “conservative estimate” of the rebate GSA would

have received had those programs been adequately disclosed. See Morsell, 651 F. Supp. 3d at

194–95. 3% of $179,129,956.10 is $5,373,898.68. The Court will therefore amend the FFCL to

award the United States treble that amount—$16,121,696.04—as rebate damages.

2. Civil Penalties

The United States argues that the Court’s error as to rebate damages also led it to err in

awarding civil penalties. See U.S.’s Mot. at 10–11. In the FFCL, the Court found that “the

United States’ request for civil penalties on the false claims [was] . . . inextricably intertwined

11
Largely for the reasons stated below, see infra note 13, the Court rejects Symantec’s
objections relating to the use of Exhibit 359 to calculate rebate damages, see Gen Digital’s
Opp’n at 14–15.

13
with its discount damages calculations.” Morsell, 651 F. Supp. 3d at 196. The Court explained

that because the United States’ discount damages analysis was “overinclusive for calculating the

should-have-paid discount,” leaving the Court with “no way of calculating that discount,” the

Court also had “no way of determining how many claims were ‘false.’” Id. Accordingly, the

Court instead assessed statutory penalties based on twenty-one identifiable false statements. Id.

at 196–97. The United States argues that the Court’s finding regarding the should-have-paid

discount was actually irrelevant, as “Symantec’s rebate fraud is not intertwined with the

Government’s discount damages.” U.S.’s Mot. at 11. That is, because “the price of each claim

transacted under Symantec’s GSA Contract should have been 3% lower,” that made “each claim

false” under either the implied certification theory or the fraudulent inducement theory,

regardless of whether those claims also should have been discounted. Id. Accordingly, the

United States argues that, because these false claims are identifiable, penalties were mandatory

as to each claim, so it was error for the Court to instead award penalties only as to the much

smaller universe of false statements. See id. at 14–17.

The Court agrees. As the Court explained in the FFCL, penalties may be awarded even

in the absence of damages. See Morsell, 651 F. Supp. 3d at 196; United States ex rel. Schwedt v.

Planning Rsch. Corp., 59 F.3d 196, 199 (D.C. Cir. 1995) (“[T]he submitter of the ‘false claim’ or

‘false statement’ is liable for a civil penalty, regardless of whether the submission of the claim

actually causes the government any damages; even if the claim is rejected, its very submission is

a basis for liability.”). Indeed, the “complementary” function of civil penalties vis-a-vis damages

is most operative when calculation of specific damages is impractical. United States ex rel. Bunk

v. Gosselin World Wide Moving, N.V., 741 F.3d 390, 403–04 (4th Cir. 2013); see United States

ex rel. Main v. Oakland City Univ., 426 F.3d 914, 917 (7th Cir. 2005) (“The statute provides for

14
penalties even if (indeed, especially if) actual loss is hard to quantify . . . .” (emphasis in

original)); see also United States ex rel. Marcus v. Hess, 317 U.S. 537, 551–52 (1943) (referring

to an earlier version of the FCA: “We think the chief purpose of the [statutory penalties] was to

provide for restitution to the government of money taken from it by fraud, and that the device of

double damages plus a specific sum was chosen to make sure that the government would be

made completely whole.”).

Moreover, “[e]ach individual false claim or statement triggers the statute’s civil

penalties.” Schwedt, 59 F.3d at 199 (finding error in the district court’s “fail[ure] to consider that

the individual progress reports, though not in themselves actual invoices, might constitute ‘false

claims’ or ‘statements’ under the Act” giving rise to civil penalties); see United States v.

Honeywell Int’l Inc., 47 F.4th 805, 810 (D.C. Cir. 2022) (“Each false claim subjects a person to

treble damages in addition to a civil penalty.”); United States ex rel. Landis v. Tailwind Sports

Corp., 324 F. Supp. 3d 67, 74 (D.D.C. 2018) (“The False Claims Act provides that those who

violate its provisions shall be liable for civil penalties of $5,500 to $11,000 for each claim

submitted.”); United States v. Honeywell Int’l Inc., No. 08-cv-0961, 2021 WL 2493382, at *8

(D.D.C. 2021) (explaining the jury’s duty to determine whether false claims were submitted and

how many and the Court’s duty to “set the level of FCA penalties from within the statutory range

and multiply that dollar figure by the number of false claims”). Indeed, attaching a mandatory

civil penalty to each one in a series of false claims appears to have been an explicit goal of

Congress when it amended the FCA to “recognize[] fraud-in-the-inducement liability.” United

States ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321, 1326 (D.C. Cir. 2005)

(quoting the explanation from the Senate Report on the 1986 amendments to the FCA that

“[e]ach and every claim submitted under a contract, loan guarantee, or other agreement which

15
was originally obtained by means of false statements or other corrupt or fraudulent conduct, or in

violation of any statute or applicable regulation, constitutes a false claim”).

In summary, regardless of whether damages are proven, civil penalties are mandatory as

to each false claim or statement for which a defendant is found liable. Here, the Court correctly

found that it could not determine how many claims were false under Symantec’s objectively

reasonable interpretation of the PRC. See Morsell, 651 F. Supp. 3d at 196–98. But it erred in its

failure to recognize that, because it found Symantec liable for false CSP disclosures concerning

rebates under either an implied certification theory, see id. at 178–82, or a fraudulent inducement

theory, see id. at 184–87, and because rebates would have applied to all GSA sales under the

contract, see supra note 9, each claim Symantec submitted under the contract was false and

therefore subject to mandatory civil penalties.

Symantec makes two unpersuasive arguments to the contrary. First, it argues that the

United States’ position “seeks to apply penalties to all GSA Schedule transactions, without

accounting for eSPA approvals or those transactions’ terms and conditions, ignoring the Court’s

finding that these factors narrow the set of claims that could arguably be deemed false.” Gen

Digital’s Opp’n at 15. This is a category error: the Court’s finding as to Symantec’s reasonable

interpretation of the PRC with respect to eSPA approvals served only to narrow the universe of

transactions for which Symantec’s failures to adhere to the PRC could give rise to FCA liability.

See Morsell, 651 F. Supp. 3d at 170–73. It did nothing to limit the reach of Symantec’s liability

for false CSP disclosures concerning its rebate programs. See id. at 179, 183 (rejecting

Symantec’s “suggestion that back-end rebates fell outside the scope of negotiations” with GSA

and finding that it acted with at least reckless disregard in “fail[ing] to ensure that [its]

disclosures were accurate throughout the life of the contract”).

16
 Second, Symantec argues that awarding penalties for each claim under the GSA contract

“would produce duplicative penalties and violate Symantec’s right to the due process of law.”

Gen Digital’s Opp’n at 15. Any concern about duplicative penalties is eliminated by the fact that

the United States did not request, and the Court does not award, civil penalties on the false

claims in addition to the false statements; rather, the Court awards civil penalties only on

Symantec’s false claims. See U.S.’s Mot. at 16 (seeking penalties only on Symantec’s false

claims); cf. Gosselin, 741 F.3d at 407–08 (explaining that “the court must permit the government

or its assignee the freedom to navigate its FCA claims through the uncertain waters of the Eighth

Amendment” by “accept[ing] reduced penalties within constitutional limits, as ultimately

adjudged by the courts”).

Even generously interpreting Symantec’s spare reference to due process as stating a

constitutional challenge to an award of penalties on each false claim under either the Fifth or

Eighth Amendment, it would still fail. It is true that FCA awards are subject to constitutional

limits. See Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 784

(2000) (“[T]he FCA imposes damages that are essentially punitive in nature . . . .”); United

States v. Mackby, 261 F.3d 821, 830 (9th Cir. 2001) (“[T]he civil sanctions provided by the False

Claims Act are subject to analysis under the Excessive Fines Clause because the sanctions

represent a payment to the government, at least in part, as punishment.”). But proving a

violation is a high bar. Under the Eighth Amendment, a fine is excessive only if “it is grossly

disproportional to the gravity of [the] offense.” United States v. Bajakajian, 524 U.S. 321, 334

(1998). This “test is by no means onerous” and fines ordered pursuant to the FCA will only be

found excessive “infrequent[ly].” Gosselin, 741 F.3d at 408; see United States v. Mackby, 339

F.3d 1013, 1017–18 (9th Cir. 2003) (“The fact . . . that Congress provided for treble damages

17
and an automatic civil monetary penalty per false claim shows that Congress believed that

making a false claim to the government is a serious offense.”). Similarly, the Due Process

Clause of the Fifth Amendment “imposes limits on ‘grossly excessive’ monetary penalties that

go beyond what is necessary to vindicate the government’s ‘legitimate interests in punishment

and deterrence.’” United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 387 (4th Cir. 2015)

(quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996)).

In evaluating whether an award is excessive in the FCA context, courts have construed

actual damages as compensatory and civil penalties as punitive. See id. at 389. The Supreme

Court has not “identif[ied] concrete constitutional limits on the ratio between harm, or potential

harm, to the plaintiff and the punitive damages award,” but it has clarified that “[s]ingle-digit

multipliers are more likely to comport with due process.” State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 424–25 (2003). Specifically, the Supreme Court has suggested that a

4:1 ratio of punitive-to-compensatory damages “might be close to the line of constitutional

impropriety,” though it noted that “ratios greater than those we have previously upheld may

comport with due process where ‘a particularly egregious act has resulted in only a small amount

of economic damages.’” Id. at 425 (citation omitted).

Here, the misconduct was serious and vast in scope. As the Court explained in the FFCL:

GSA was fraudulently induced to enter the MAS contract with Symantec under the terms
that it did because of Symantec’s knowingly, materially false CSP disclosures with
respect to the rebate program disclosures and the Frequency Chart. Symantec also
impliedly certified compliance with the PRC and CSP requirements when submitting
claims throughout the life of the contract. Symantec made knowing, materially false
statements related to those claims for payment during the negotiation and the life of the
contract through the subsequent modifications reaffirming the initially false CSPs. And it
failed to offer the price reductions to which GSA was entitled during the life of the
contract.

18
Morsell, 651 F. Supp. 3d at 190. Against this backdrop, the United States seeks the maximum

penalty of $11,000 for each of the 3,352 claims it contends Symantec made under the GSA

contract, for a total of $36,872,000 in civil penalties. See U.S.’s Mot. at 17.

The Court finds that this figure is in proportion to the gravity of the offense. The United

States proved that the fraud Symantec perpetrated on GSA caused the government to overpay

throughout the life of the contract. While the United States did not prove much of the amount of

overpayment to a reasonable certainty, it plausibly alleged that the overpayment easily reached

into the tens of millions of dollars. Morsell, 651 F. Supp. 3d at 197 (“[I]t is clear that the

government suffered in larger amounts than awarded here.”); State Farm, 538 U.S. at 425

(explaining that due process admits greater punitive damages where “a particularly egregious act

has resulted in only a small amount of economic damages”). Indeed, the Court’s “exceptionally

conservative” ballpark estimate of discount damages alone reached nearly $12 million, which,

even before trebling, would produce a punitive-to-compensatory damages ratio of only a little

over 3:1, well within the boundary beyond which the Supreme Court has said punitive damages

may be suspect. 12 And rebate damages—which, after trebling, amount to $16,121,696.04—

substantially reduce the ratio even further. When those damages are combined with the ballpark

estimate of discount damages, the ratio of punitive-to-compensatory damages is just over 1:1.

Accordingly, the Court finds that the United States’ requested civil penalty total of $36,872,000

is constitutionally permissible. See Drakeford, 792 F.3d at 389 (affirming the constitutionality of

civil penalty of $119,515,000 on 21,730 false claims); United States ex rel. Montcrieff v.

12
That the Court found that the United States failed to prove all of its actual damages to a
reasonable certainty does not control its analysis of the constitutionality of civil penalties. See
State Farm, 538 U.S. at 418 (identifying as a “guidepost” in evaluating punitive damages “the
disparity between the actual or potential harm suffered by the plaintiff and the punitive damages
award” (emphasis added)).

19
Peripheral Vascular Assocs., P.A., 649 F. Supp. 3d 404, 424, 428 (W.D. Tex. 2023) (awarding

$21,825,592 in civil penalties on 7,380 false claims and finding that amount constitutionally

permissible).

The Court also finds that figure warranted. As it explained in the FFCL, “[t]he

determination of the amount of the statutory civil penalties rests within the discretion of the

district court.” Morsell, 651 F. Supp. 3d at 197 (quoting United States ex rel. Miller v. Bill

Harbert Int’l Const., Inc., 501 F. Supp. 2d 51, 56 (D.D.C. 2007)). The Court’s original

reasoning in awarding the statutory maximum of $11,000 per false statement applies equally to

its present award per false claim; as the Court explained in the FFCL, and as Symantec itself

implicitly acknowledges, “the same false statements and records underlie the claims at issue.” Id.

at 196; see Gen Digital’s Opp’n at 15 (arguing that assessing penalties for both false statements

and false claims would be “duplicative”). Symantec’s original “false statements and records

related to the [contract] negotiations,” including its “omission of the Rebate Program

disclosures,” warrant penalties “at the maximum of the statutory range.” Morsell, 651 F. Supp.

3d at 197. So too Symantec’s “reckless disregard in certifying that its CSPs had not changed,”

misrepresentations that “infected the entirety of the contract over the next several years.” Id.

Moreover, the conduct for which the Court found Symantec liable—making knowingly false

statements and omissions that defrauded the government into overpaying for its products—lies at

the heart of what Congress sought to prevent by enacting the FCA, increasing the deterrent value

of any penalties. See United States v. McNinch, 356 U.S. 595, 599 (1958) (explaining that

Congress enacted the FCA “to stop th[e] plundering of the public treasury” through, among other

things, the Government being “charged exorbitant prices for goods delivered”). Accordingly, the

20
Court awards $11,000 for each of Symantec’s 3,352 false claims, 13 for a total of $36,872,000 in

civil penalties.

3. Second PRC Trigger

The United States next takes issues with the Court’s finding that any misrepresentations

concerning the Rewards program were immaterial. 14 See U.S.’s Mot. at 20. It argues that the

Court simply concluded that “Bradbury’s falsities in those disclosures about Rewards were not

material” when it also should have considered evidence showing that “Symantec violated the

Second PRC Trigger by fixing and jumping customers to Band E under the Rewards buying

13
The Court agrees with the United States that U.S. Exhibit 359 contains sufficiently
reliable data to arrive at this number. Symantec argues that U.S. Exhibit 359 is unreliable
because the “Court found [it] improperly overbroad for the purposes of calculating FCA
damages.” Gen Digital’s Opp’n at 15. But that overstates the Court’s narrow finding, in which
it evaluated Dr. Gulley’s methodology to winnow total at-issue sales to the narrower group of
transactions from which to calculate discount damages. By contrast, the Court here uses U.S.
Exhibit 359 simply to derive total sales data unaffected by Dr. Gulley’s winnowing
methodology. Symantec did not object to the reliability of this data at trial, see Trial Tr. at
3765:22–24 (Gulley) (Symantec reiterating a standing objection to Mr. Gulley’s testimony on the
ground that he relied on excluded testimony, which the Court had already denied, but not
otherwise objecting to the admission of U.S. Exhibit 359); see United States ex rel. Morsell v.
NortonLifeLock, Inc., 567 F. Supp. 3d 248, 277 (D.D.C. 2021) (denying Symantec’s motion to
exclude Mr. Gulley’s testimony on this ground), which makes sense given that it is derived of
Symantec’s own IFF sales data, see Trial Tr. at 3717:25–3720:4 (Gulley). Accordingly, using
U.S. Exhibit 359, the Court finds, after excluding orders through resellers, that Symantec
submitted 3,352 claims under the GSA contract. Symantec notably does not directly attack the
accuracy of this figure or propose any alternative.
Along similar lines, Symantec suggests in a footnote that using the filtering functions on
U.S. Exhibit 359 to generate the total number of GSA orders, less reseller orders, somehow
violates its right to cross-examine witnesses. See Gen Digital’s Opp’n at 15 n.8. This is
unpersuasive, as the filtering functions are not testimony and Symantec in fact cross-examined
Dr. Gulley using those same functions. See Trial Tr. at 3884:6–3888:18 (Gulley), ECF No. 332
(cross-examining Dr. Gulley to establish the amount of transactions through resellers using U.S.
Exhibit 359 and the filtering functions in the exhibit spreadsheet).
14
The Rewards program was “akin to a frequent flyer program, in which customers
accumulated points across multiple orders that allowed them to achieve progressively more
favorable bands of pricing.” Morsell, 651 F. Supp. 3d at 122.

21
program.” Id. But the Court did consider that evidence. In its findings of fact, the Court laid out

the conditions for each of the three PRC triggers. See Morsell, 651 F. Supp. 3d at 120–21. It

also walked through the Rewards program, explaining, with citations to record evidence, how

prices differed across bands. See id. at 121–22. It described in detail the “band jumping”

damages analysis conducted by the United States’ expert Dr. Holt. Id. at 148–50. It also

described criticism of that analysis leveled by Symantec’s expert, Mr. Tucker, on grounds that

Dr. Holt’s analysis “was done on a line item level rather than an order level.” Id. at 149–50.

Thus, the Court evaluated the relevant evidence concerning band jumping, including the

weaknesses of that evidence, even though it did not ultimately conclude that band jumping

constituted a separate violation of the PRC. The Court sees no error in that process. See

Schilling v. Schwitzer-Cummins Co., 142 F.2d 82, 84 (D.C. Cir. 1944) (“While counsel may be

disappointed that findings do not discuss propositions sincerely contended for, that, alone, does

not make them inadequate or suggest that such propositions were not understood by the

court. . . . Certainly, we should not require or encourage trial judges, in preparing findings, to

assert the negative of each rejected contention as well as the affirmative of those which they find

to be correct.”); Fed. R. Civ. P. 52(a) advisory committee’s note to 1946 amendment (“[T]he

judge need only make brief, definite, pertinent findings and conclusions upon the contested

matters; there is no necessity for over-elaboration of detail or particularization of facts.”).

B. “Step Two”

The United States next points to three additional, and more fundamental, findings that it

claims require revision in order to avoid legal error. See U.S.’s Mot. at 27. The Court finds that

all three arguments merely amount to attempts to relitigate matters properly decided by the Court

as the trier of fact and therefore fail to state grounds for relief under Rule 52 or Rule 59.

22
 1. FPR Closure Paragraph

First, the United States argues that the Court misinterpreted the closure paragraph in the

Final Proposed Revision (“FPR”) to which GSA and Symantec agreed. Id. To review, in the

FFCL the Court described the “standard clauses” included in all MAS contracts that are

“designed to ensure that the prices negotiated for government purchasers are appropriately

advantageous at the time of negotiation and that they remain so during the life of the Contract.”

Morsell, 651 F. Supp. 3d at 119. Among those clauses is the PRC, regarding which the Court

explained the “three events which trigger price reductions when they occur.” Id. at 120. The

Court then laid out its findings concerning the “preparation and negotiation of Symantec’s GSA

contract.” Id. at 125. As relevant here, the Court explained that “Symantec submitted its initial

offer for a GSA MAS contract on February 28, 2006,” which included “the standard solicitation

terms and questions”—including the PRC. Id. at 125; see U.S. Ex. 4A at SYM00014753. That

offer stated that it was in reference to “Refresh #17” of “Solicitation No. FCIS-JB-980001-B,”

U.S. Ex. 4A at SYM00014716, SYM00014687. After extensive negotiations spanning nearly a

year, the parties agreed to the FPR. Morsell, 651 F. Supp. 3d at 139. That signed FPR states that

it was submitted “with respect to [Symantec’s] offer under the General Services Administrations

Federal Supply Service Multiple Award Schedule” and that Symantec “agree[s] to abide by

terms and conditions of Solicitation Number FCIS-JB-980001B, Refresh #17.” U.S. Ex. 30 at

SYM00344346.

The Court explained that the signed FPR was the product of a last-minute flurry of

negotiation. See Morsell, 651 F. Supp. 3d at 137–39. Specifically, as relevant here, while

Symantec’s most recent proposal had included a “Conclusion” stating that it was “confident that

this Final Proposal Revision provides the Government with fair and reasonable prices for

23
Symantec Products,” id. at 136; U.S. Ex. 16B at SYM00370750, GSA returned a revised draft

with a closure instead certifying that “the discounts[, pricing and/or rates] given to the

Government are either equal to and/or greater than what is granted to any commercial and/or

Government customer,” Morsell, 651 F. Supp. 3d at 138; U.S. Ex. 20B at SYM00396770. After

a phone conversation between GSA and Symantec, GSA “agreed to modify [that] phrase in the

closure.” Morsell, 651 F. Supp. 3d at 138. The further modified version, as reflected in the

final, signed FPR, included an additional “terms and conditions” clause, id., such that the

closure read: “Symantec Corporation certifies that the discounts, pricing and/or rates given to the

Government are equal to and/or greater than what is granted to any commercial and/or

Government customer under similar terms and conditions.” U.S. Ex. 30 at SYM00344351

(formatting omitted; emphasis added).

The Court concluded that this eleventh-hour revision was meaningful. Specifically, it

found that the addition of the terms and conditions clause to the closure, in conjunction with

other evidence, tended to show that Symantec held a contemporaneous understanding that “non-

standard discounts with different terms and conditions” that were “approved in eSPA” did not

trigger the PRC. Morsell, 651 F. Supp. 3d at 170–71. The Court found that this understanding

“was not objectively unreasonable” under the circumstances, and therefore that Symantec lacked

the requisite intent to establish FCA liability for purported PRC violations concerning

eSPA-approved discounts on sales with different terms and conditions. Id. at 171; see United

States ex rel. Purcell v. MWI Corp., 807 F.3d 281, 287–88 (D.C. Cir. 2015) (explaining that the

“FCA does not reach an innocent, good-faith mistake about the meaning of an applicable rule or

regulation” or “those claims made based on reasonable but erroneous interpretations of a

defendant’s legal obligations”).

24
 The United States argues that the Court erred in making this finding because the Court

did not make a predicate finding that the “Closure is facially ambiguous as to its impact on the

PRC.” U.S.’s Mot. at 29. For support, it provides an extended summary of federal and D.C. law

concerning contract interpretation, focused principally on the notion that extrinsic evidence of a

contract’s meaning may only be consulted if its text is ambiguous. See id. at 27–29. But this

overlooks that the Court’s review of the closure paragraph was actually addressed to the issue of

scienter under the FCA. Morsell, 651 F. Supp. 3d at 166 (section titled “Scienter and the Price

Reduction Clause”). As such, it did not purport to authoritatively construe the contract, but

rather simply to identify whether Symantec’s interpretation was “reasonable,” regardless of

whether it was “erroneous.” Purcell, 807 F.3d at 288. Moreover, the United States’ attempt to

distinguish the PRC as unrelated to the closure is unavailing, as the signed FPR that includes the

revised closure paragraph explicitly incorporates by reference the “terms and conditions” of the

solicitation which were included in Symantec’s offer—including the PRC. See U.S. Ex. 30 at

SYM00344346. Finally, and in any event, the Court did find the closure ambiguous as it related

to the PRC. Morsell, 651 F. Supp. 3d at 201 (explaining, with respect to the United States’

breach of contract claims, that “[a]s noted above, . . . Symantec’s reasonable interpretation of the

contract excluded non-standard discounts approved in eSPA under different terms and

conditions. That was a reasonable interpretation of the ambiguous language ‘under similar terms

and conditions’ added in the closure.” (emphasis added)).

As such, while the United States may disagree with the Court’s conclusion that Symantec

contemporaneously held an objectively reasonable interpretation of the PRC that narrowed its

liability under the FCA, it has not established that it is entitled to relief on these grounds under

Rule 52 or Rule 59.

25
 2. Indirect Liability

Second, the United States argues that the Court erred in finding that Symantec was not

liable for causing resellers to submit false statements and claims. See U.S.’s Mot. at 33. It first

asks the Court to “revisit” its conclusion that there was “insufficient evidence as to the role that

Symantec’s CSP Disclosures played in setting the prices on the Reseller’s contracts to support an

indirect Presentment Claim.” Id. The Court declines to do so, finding no error in its extensive

summary of the evidence on this issue and analysis of its infirmities. See Morsell, 651 F. Supp.

3d at 187–89.

The United States next claims that the Court erred by not finding that “overcharges on the

Resellers’ GSA contracts were directly and proximately caused by Symantec’s own false

statements and its direct violation of the Act’s False Statement Provisions, including its GSA

pricelist that contained falsely inflated prices.” U.S.’s Mot. at 33. But again, this is merely an

expression of the United States’ disagreement with the Court’s conclusion as to proximate cause.

The evidence the United States cites to support its position is the same evidence the Court

considered before finding the contrary. Compare U.S.’s Mot. at 34 (citing to the Carahsoft

Letter of Supply, U.S. Ex. 306; the GTSI Letter of Supply, U.S. Ex. 307; the authorization for

use of CSPs, U.S. Ex. 309; and Bradbury’s testimony at page 1987) with Morsell, 651 F. Supp.

3d at 189 (reviewing the same evidence, which was cited by the United States in its trial

submission, before finding that the United States “has not provided enough evidence to conclude

that Symantec’s pricing also impacted the pricing on the resellers’ own GSA contracts”). This

attempt to relitigate an issue properly decided by the trier of fact provides no occasion for relief

under Rule 52 or Rule 59. Paleteria La Michoacana, 247 F. Supp. 3d at 91 (“A motion under

Rule 52(b) ‘is not an avenue for relitigating issues upon which the moving party did not prevail

26
at trial.’” (citation omitted)); FMD Restoration, 320 F.R.D. at 323 (“As with motions brought

under Rule 52, ‘Rule 59 motions may not be used to [relitigate] old matters, or to raise

arguments or present evidence that could have been raised prior to the entry of judgment.’”

(citation omitted)).

3. Order-Level Discount Calculations

Third, the United States argues that “[t]he Court’s reasoning that determining damages in

this case also required an order-level review also constitutes legal error.” U.S.’s Mot. at 35.

This appears to be a response to the Court’s finding that it “disagrees with Dr. Gulley’s approach

of having ignored the order level discounts for each line item when calculating the ‘average’

discount, which resulted in an unreasonably inflated average should-have-received discount.”

Morsell, 651 F. Supp. 3d at 193. But even if the United States is right that the order-level

approach “mixes apples and oranges, allowing non-bucket transactions to affect the should-have-

received discount of the bucket,” U.S.’s Mot. at 36, that would not disturb the Court’s overall

conclusion that its finding concerning Symantec’s reasonable interpretation of the PRC rendered

Dr. Gulley’s datasets overinclusive in a way that precluded a reasonably certain estimate of

discount damages. See Morsell, 651 F. Supp. 3d at 193 (“Although the Court does not take issue

with the bucketing methodology as a general matter, Dr. Gulley’s testimony does not explain

how to apportion his total results if the Court agrees with some buckets and not others (or some

transactions and not others), and the United States has not directed it to anything in the record

indicating how to reliably do so.”). The United States thus has not carried its burden to establish

that the Court’s finding should be amended on this ground.

27
 C. California’s Motion

California filed a four-page document styled as a motion to amend and supplement the

FFCL, but that principally purports to “join[] in the U.S.’ Motion” while also making a stray

request that the Court “amend, supplement, or alter its Findings regarding California

accordingly” in the event it amends the FFCL “on issues raised in the U.S.’s motion relevant to

California’s derivative claims.” Cal.’s Mot. at 2. As laid out in detail in the FFCL, while the

California False Claims Act was “modeled after the federal FCA,” Morsell, 651 F. Supp. at 117,

California’s claims concerned two distinct California purchasing programs about which the court

made independent findings of fact, see id. at 156–59, in support of independent conclusions of

law, id. at 203–12. California’s spare submission falls well short of carrying its “heavy burden”

to prove entitlement to relief under Rule 52 or Rule 59. FMD Restoration, Inc., 320 F.R.D. at

322. Regardless, the brief substance of its submission only focuses with particularity on joining

the United States’ arguments to support its claim to discount damages, which the Court rejected

above. See Cal.’s Mot. at 3–4. Accordingly, California’s motion fails.

28
 V. CONCLUSION

For the foregoing reasons, the United States’ Motion to Amend and Supplement the

Findings of Fact and Conclusions of Law (ECF No. 364) is GRANTED in part and DENIED

in part. The Judgment is amended as follows: (1) the United States is awarded rebate damages

in the amount of $16,121,696.04; and (2) the United States is entitled to civil penalties in the

amount of $36,872,000.00. The Judgment is not otherwise amended. California’s Motion to

Amend and Supplement the Findings of Fact and Conclusions of Law (ECF No. 365) is

DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: January 16, 2024 RUDOLPH CONTRERAS
United States District Judge

29