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Date: 10-31-2022

Case Style:

United States of America v. Industrial Equipment and Supply Company, LLC (IESC), Mark Nystoriak and Sandra Nystoriak

Case Number:

Judge: None

Court: United States District Court for the Northern District of New York (Albany county)

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

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Description: Albany, New York civil litigation lawyers represented Defendants accused of violating the False Claims Act.

Industrial Equipment and Supply Company, LLC (IESC) and its principals, Mark Nystoriak and Sandra Nystoriak, of Latham, New York have agreed to pay $75,000 to resolve allegations that they violated the False Claims Act for selling counterfeit batteries to the federal government on a contract valued at $33,928.60.

“Our military received counterfeit batteries after a contractor cut corners to increase profits,” said United States Attorney Freedman. “We will continue to use the False Claims Act to hold government contractors accountable when they do not meet contract requirements.”

The Defense Logistics Agency (DLA) is the Department of Defense’s (DoD) combat logistics support agency and manages DoD’s supply chain, delivering consumable supplies to DoD components all over the world. IESC contracted to sell batteries to DLA for a total contract amount of $33,928.60. The contract required that the batteries be manufactured by SAFT America, Inc. and fit a standard military specification. IESC represented that it would comply with the Buy American Act (BAA) and supply domestically manufactured batteries. IESC procured the batteries from a supplier in Singapore and failed to verify that the Singapore distributor was an authorized SAFT America distributor. DLA distributed the batteries throughout its supply system, and later received reports that the batteries caused military equipment failures. DLA subsequently determined the batteries were counterfeit.

This settlement resolves the United States’ allegations that IESC violated the False Claims Act by recklessly disregarding a substantial risk that the batteries would be counterfeit when it procured batteries from an unauthorized distributor in Singapore, who offered a lower purchase price than an authorized SAFT distributor would have.

This settlement was the result of a joint investigation by the U.S. Army Criminal Investigative Division, Syracuse Fraud Branch Office; the Naval Criminal Investigative Service, Economic Crimes Field Office; and the Air Force Office of Special Investigations, Procurement Fraud Detachment 6 Rome, New York.

Assistant U.S. Attorney Christopher R. Moran represented the United States in this matter.

31 U.S.C. 3729 provides:

(a) Liability for Certain Acts.—

(1) In general.—Subject to paragraph (2), any person who—

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

(C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);

(D) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property;

(E) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;

(F) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge property; or

(G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government,

is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Public Law 104–410 1), plus 3 times the amount of damages which the Government sustains because of the act of that person.

(2) Reduced damages.—If the court finds that—

(A) the person committing the violation of this subsection furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;

(B) such person fully cooperated with any Government investigation of such violation; and

(C) at the time such person furnished the United States with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation,

the court may assess not less than 2 times the amount of damages which the Government sustains because of the act of that person.

(3) Costs of civil actions.—A person violating this subsection shall also be liable to the United States Government for the costs of a civil action brought to recover any such penalty or damages.

(b) Definitions.—For purposes of this section—

(1) the terms “knowing” and “knowingly”—

(A) mean that a person, with respect to information—

(i) has actual knowledge of the information;

(ii) acts in deliberate ignorance of the truth or falsity of the information; or

(iii) acts in reckless disregard of the truth or falsity of the information; and

(B) require no proof of specific intent to defraud;

(2) the term “claim”—

(A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that—

(i) is presented to an officer, employee, or agent of the United States; or

(ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government's behalf or to advance a Government program or interest, and if the United States Government—

(I) provides or has provided any portion of the money or property requested or demanded; or

(II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and

(B) does not include requests or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual's use of the money or property;

(3) the term “obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment; and

(4) the term “material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

(c) Exemption From Disclosure.—Any information furnished pursuant to subsection (a)(2) shall be exempt from disclosure under section 552 of title 5.

(d) Exclusion.—This section does not apply to claims, records, or statements made under the Internal Revenue Code of 1986.

Outcome: Defendants agreed to pay $75,000 to settle the claims made against them.

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