Supreme Court, New York County, August 30, 2019

Morgan, Lewis & Bockius LLP, New York City (Brian A. Herman, Kelly A. Moore and David G. Braun of counsel), and Ezra D. Church, Philadelphia, Pennsylvania, admitted pro hac vice, for defendants.

Kirby McInerney LLP, New York City (Randall M. Fox of counsel), for relator.

On February 19, 2015, Raw Data Analytics LLC (relator) commenced the instant qui tam action on behalf of the State of New York pursuant to the New York State False Claims Act^[FN1] (FCA) (State Finance Law §§ 187-194) concerning defendants' alleged failure to pay interest to the Office of the State Comptroller (OSC) under the Abandoned Property Law when there is a late escheatment of abandoned property to the OSC.^[FN2] Defendants' motion to dismiss, converted by the court to a motion for summary judgment, is decided herein.

In the amended complaint, relator alleges that defendants underpaid or failed to pay the State interest that they were required to pay on abandoned properties that they escheated late to the OSC. Relator alleges that since at least 2005, the{**65 Misc 3d at 707} defendants "have been late in escheating thousands of abandoned properties to the OSC" (amended complaint ¶ 3). According to the allegations, defendants submitted reports, called "holder reports," as required under the Abandoned Property Law, to the OSC to report on abandoned properties that they had held. As for these reports, relator alleges that the report required defendants to state their obligation to pay interest on the late escheated abandoned properties, and each year defendants' reports contained false statements that they owed less interest than was due, or no interest at all, and they nevertheless verified the statements as true and accurate (id. ¶¶ 51-55, 58). Relator also alleges that defendants falsely represented the last date of contact on the holder reports (id. ¶¶ 60-63).

A final report of escheated abandoned property to the OSC (holder report) must include: "(a) a completed Verification and Checklist on OSC Form AC 2709; (b) a report detail on CD, File Transfer Protocol (FTP), or paper, on OSC Form AC 2686; and (c) a remittance to the OSC of the escheated property" (amended complaint ¶ 33, citing OSC Handbook for Reporters of Unclaimed Funds [Handbook] at 17).

Further, in the amended complaint, relator offers several examples of defendants' alleged failure to pay interest due and owing on abandoned properties that they escheated late to the OSC. One such example concerned property under identification number 051526417-042463136, which was for cash dividends. These monies were paid to New York State by defendant-holder JP Morgan Chase & Co. on or about November 10, 2013. The property was owned by Richard L. Guiterman who died on or about July 2, 2001. The holder report reflects that its last contact with the account owner was on or about November 9, 2007. The dormancy period for this type of property was three years. According to relator, even using the 2007 date as the last date of contact would mean that the dormancy period ended on or about November 9, 2010, and the defendant should have transferred the abandoned property to New York State by November 10, 2011.

A second example, alleged in the complaint, describes a savings account paid to the OSC on or about November 10, 2012, by defendant-holder JP Morgan Chase Bank NA. The property was owned by Roger Smith, and the holder reports that its last contact with the account owner was on or about January 8, 2004. The dormancy period for this type of property is five{**65 Misc 3d at 708} years. Thus, the payment should have been made to the OSC by November 20, 2009.

The amended complaint alleges three causes of action under section 189 of the State Finance Law: (1) in the first cause of action, relator alleges a violation of State Finance Law § 189 (1) (d), as defendants did not pay all the interest to the State on the property escheated late; (2) in the second cause of action, relator alleges a violation of State Finance Law § 189 (1) (g), as defendants made or used false records or statements with respect to their obligations to transmit money or property to the State related to interest on escheated properties; and (3) in the third cause of action, relator alleges a violation of State Finance Law § 189 (1) (h), as defendants knowingly concealed or improperly avoided their obligations to pay money or property to the State.

The Abandoned Property Law governs what happens to lost or unclaimed money or other forms of property. The law requires holders of unclaimed property to escheat this property to the State: "It is hereby declared to be the policy of the state, while protecting the interest of the owners thereof, to utilize escheated lands and unclaimed property for the benefit of all the people of the state, and this chapter shall be liberally construed to accomplish such purpose" (Abandoned Property Law § 102).

Section 303 of the Abandoned Property Law requires a bank to file a report describing the property subject to the escheatment. The annual escheatment is to be accompanied by a report "setting forth such information as the state comptroller may require relative to such abandoned property" (Abandoned Property Law § 303 [2]).

Section 1412 (2) of the Abandoned Property Law addresses the payment of interest on late escheatments:

"In addition to the penalty prescribed in subdivision one of this section for failure to report, any person failing to pay any sum or to deliver any property required to be paid or delivered to the state comptroller by this chapter or any law relating to abandoned property shall pay to the people of the state interest on the amount or value of such property. Such interest shall be at the rate of ten per centum per annum computed for a period to commence upon the date such payment or delivery was required by this chapter and to terminate upon{**65 Misc 3d at 709} the date of full compliance therewith, except that the state comptroller may waive the payment of all or part of such interest whenever in his opinion the circumstances warrant such waiver."

Section 1412 (1) is a separate penalty provision of the Abandoned Property Law. The penalty provision applies to the willful failure to escheat abandoned property or to submit the required holder reports. For property to be considered abandoned under the Abandoned Property Law, a dormancy period must have passed. Dormancy periods vary and are listed in charts set by the State, indicating the length of the dormancy period for each property type.

The relevant provision of the OSC Handbook states the following:

"Interest Charges for Late Payment or Delivery of Abandoned Property

"If you are late delivering abandoned property, New York State can charge you late filing interest. Interest is 10% per year from the date payment or delivery was due to the date you make payment or delivery" (Handbook at 10; Herman affirmation, exhibit 2).

In the amended complaint, relator identifies instances in which defendants, pursuant to the Abandoned Property Law, reported and paid abandoned property late to the OSC without paying the interest, and in the requisite reports under the Abandoned Property Law, defendants set forth false statements. Accordingly, relator alleges defendants violated the FCA in failing to pay statutory interest to the State.

Defendants filed a motion to dismiss in this action on August 12, 2016. By a July 6, 2017 order, the court posed this question to the OSC: "With regard to the period January 1, 2005 to February 19, 2015, what was the Comptroller's interpretation of Abandoned Property [*2]Law Section 1412 relating to any obligation of banks to self-calculate and pay interest when they escheated abandoned property late?"

In a December 22, 2017 letter, the OSC responded to the court's question by citing Abandoned Property Law § 1412 (1) and (2), and stated, in relevant part, that "direction provided by the Office of the State Comptroller's Office of Unclaimed Funds (OUF) during the relevant time period noted the potential imposition of interest at the discretion of the Comptroller" (Herman affirmation, exhibit 5 [OSC letter]). The letter goes on to cite the portion of the Handbook that "[i]f you {**65 Misc 3d at 710}are late delivering abandoned property, New York State can charge you late filing interest. Interest is 10% per year from the date payment or delivery was due to the date you make payment or delivery" (id., quoting Handbook [internal quotation marks omitted]). The letter continued:

"With regard to the reporting of unclaimed funds by JP Morgan Chase Bank during the relevant period, we note that in 2013 OUF audit staff examined the Bank's reporting in the areas of deposit accounts, credit card operations, electronic card services, home finance group and auto finance group for report years 2008 through 2012. The OUF's examination disclosed additional abandoned property due the State in the amount of $32,160,127.22 (consisting primarily of demand deposit accounts, savings accounts, and time accounts). The OUF determined that the circumstances warranted the waiver of late filing interest and the Bank remitted all the funds identified by the audit to the OUF" (id.).

After this letter was issued, the court, by order dated January 22, 2018, sua sponte converted the motion to dismiss into a motion for summary judgment, directed further briefing and scheduled oral argument on May 15, 2018.

The Parties' Contentions

Defendants argue that the duty to pay interest is a contingent obligation, imposed by an exercise of discretion by the OSC, and therefore not actionable under the FCA. In support of the motion, defendants submit, inter alia, the OSC letter, Handbook and website. Defendants point to the language in the OSC letter indicating that the OSC "can charge" interest, and noting "the potential imposition of interest at the discretion of the Comptroller." They rely on the language in the Handbook and website that states that "[i]nterest charges may also apply for late payment or delivery of abandoned property." They claim that nothing in the statute explicitly requires holders to "self-calculate and pay" interest for late escheated property; rather, the evidence submitted shows that the duty to pay interest relies upon a discretionary act and is therefore contingent.

Defendants also argue that the failure to report or pay interest is not "material." In this regard, defendants cite to Universal Health Services, Inc. v United States ex rel. Escobar (579 US —, —, 136 S Ct 1989, 1996, 2002 [2016]) for the proposition{**65 Misc 3d at 711} that the element purportedly focuses on the government's "likely or actual behavior" and argue that, because the OSC letter clearly states that interest was waived during a prior audit, the OSC letter is "strong evidence" that any violation of the statute is not material.

In opposition, relator argues that the obligation to pay interest arises as soon as the holder is late in paying or delivering property to the OSC and, therefore, the duty is not contingent. Relator further uses principles of statutory interpretation to demonstrate that the intent of the legislature in enacting the interest provision was not meant to be dependent upon any discretionary act of the OSC, but rather the duty was automatic. Further, while penalties may, in some cases, be considered contingent obligations, the issue here concerns interest, which is [*3]distinctly different from a penalty. With respect to materiality, relator argues that the reliance on Escobar is misplaced, and all that is required is that the defendants' actions (or inactions) have "a natural tendency to influence, or be capable of influencing the payment or receipt of money or property" (State Finance Law § 188 [5]). Relator claims that the failure to pay interest, and/or accurately file holder reports, clearly meets this "natural tendency" test.

The OAG submitted a letter dated May 14, 2018, with respect to the arguments made in the motion papers (NY St Cts Electronic Filing [NYSCEF] Doc No. 61). In the letter, the OAG stated that the defendants "incorrectly characterize the interest obligation under Abandoned Property Law § 1412 as discretionary and contingent. Second, defendants are incorrect in concluding that the alleged violation was not material" (id. at 1). In a letter dated May 21, 2018, defendants responded to the arguments asserted by the OAG in its correspondence (NYSCEF Doc No. 62).

Applicable Law

An award of summary judgment is appropriate when no issues of fact exist (see CPLR 3212 [b]; Andre v Pomeroy, 35 NY2d 361 [1974]; Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943 [1st Dept 1984], affd 62 NY2d 938 [1984]). In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Indeed, the moving party has the burden to{**65 Misc 3d at 712} present evidentiary facts to establish his or her cause sufficiently to entitle the movant to judgment as a matter of law (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad, 64 NY2d at 853).

In deciding the motion, the court views the evidence in the light most favorable to the nonmoving party and gives that party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). While the moving party has the initial burden of proving entitlement to summary judgment (Winegrad, 64 NY2d at 853), once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The New York State False Claims Act was initially enacted in 2007 as part of legislation to combat Medicaid fraud. "It is not restricted to Medicaid fraud, however, but applies to any sort of looting of the public purse" (State of New York ex rel. Seiden v Utica First Ins. Co., 96 AD3d 67, 71 [1st Dept 2012]). It was amended in 2010 to strengthen the laws and mirror the amendments made under the federal False Claims Act to make it "at least as effective as the federal Act" (Sponsor's Mem, Bill Jacket, L 2010, ch 379 at 5). " 'The Supreme Court has given the statute an expansive reading,' observing that it 'covers all fraudulent attempts to cause the Government to pay out sums of money' " (United States ex rel. Bahrani v Conagra, Inc., 465 F3d 1189, 1194 [10th Cir 2006] [citations omitted]).^[FN3] Therefore, the FCA should, too, be read expansively to cover all fraud concerning money paid or owed to the government.

Defendants' motion seeks to dismiss relator's claims asserted under State Finance Law § 189 (1) (g) and (h).^[FN4] These two sections are known as the reverse false claim provisions. "A 'reverse false claim' occurs when someone uses a false record to{**65 Misc 3d at 713} avoid an obligation to pay the government" (Seiden, 96 AD3d at 71, citing United States v Q Intl. Courier, Inc., 131 F3d 770, 773 [8th Cir 1997]).

Liability under section 189 (1) (g) is found where one "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 state or a local government" (see Seiden, 96 AD3d at 71-72; see also People v Sprint Nextel Corp., 26 NY3d 98, 106-107 [2015]; Anonymous v Anonymous, 165 AD3d 19 [1st Dept 2018]). State Finance Law § 189 (1) (h) provides liability for "any person who . . . knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state or a local government" (see United States ex rel. Customs Fraud Investigations, LLC. v Victaulic Co., 839 F3d 242, 254-255 [3d Cir 2016] [where company failed to mark its product, making product subject to a government tariff, and then failed to pay the tariff, a reverse false claim was stated]; see also Kane ex rel. U.S. v Healthfirst, Inc., 120 F Supp 3d 370, 388 [SD NY 2015]).

"Obligation"

The term "obligation" is found in both paragraphs (g) and (h) of section 189 (1). As relevant here, it is defined in the statute as meaning "an established duty, whether or not fixed, arising . . . from statute or regulation" (State Finance Law § 188 [4]).

An "obligation" refers to "one existing at the time of the improper conduct to pay the Government funds, the amount of which may not be fixed at the time of the improper conduct" (United States ex rel. Petras v Simparel, Inc., 857 F3d 497, 506 [3d Cir 2017]). Any duty to pay under a False Claims Act claim "must be formally 'established' before liability can arise" (United States ex rel. Grubea v Rosicki, Rosicki & Assoc., P.C., 318 F Supp 3d 680, 703 [SD NY 2018] [some internal quotation marks and citations omitted]). "[T]he reverse false claims act does not extend to . . . potential or contingent obligations to pay the government" (United States ex rel. Bain v Georgia Gulf Corp., 386 F3d 648, 657-658 [5th Cir 2004] [emphasis omitted]). Further the term obligation "does not include a duty that is dependent on a future discretionary act" (Petras, 857 F3d at 505; see United States ex rel. Simoneaux v E.I. duPont de Nemours & Co., 843 F3d 1033, 1040 [5th Cir 2016]).

The statutory text giving rise to the obligation at issue here states as follows:{**65 Misc 3d at 714}

"In addition to the penalty prescribed in subdivision one of this section for failure to report, any person failing to pay any sum or to deliver any property required to be paid or delivered to the state comptroller by this chapter or any law relating to abandoned property shall pay to the people of the state interest on the amount or value of such property. Such interest shall be at the rate of ten per centum per annum computed for a period to commence upon the date such payment or delivery was required by this chapter and to terminate upon the date of full compliance therewith, except that the state comptroller may waive the payment of all or part of such interest whenever in his opinion the circumstances warrant such waiver" (Abandoned Property Law § 1412 [2]).

"When presented with a question of statutory interpretation, our primary consideration 'is to ascertain and give effect to the intention of the Legislature' " (People v Andujar, 30 NY3d 160, 166 [2017], quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). "While 'the words of the statute are the best evidence of the Legislature's intent,' legislative history may also be relevant as an aid to construction of the meaning of words" (Andujar, 30 NY3d at 166, quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]).

Defendants ask this court to note the absence of any language indicating that holders are to "self-calculate," pay, and then request a waiver of interest after the fact. Defendants also argue that the words "shall pay" are not dispositive in determining whether the duty is contingent (see Simoneaux, 843 F3d 1033), and further ask the court to focus on the "except[ion]" phrase to find that the duty may only be imposed upon a discretionary act by the government. In support, as noted above, the defendants rely on the language in the OSC letter, Handbook and website to argue that the OSC must first exercise its discretion to impose the interest.

[1] The court finds that the language of the Abandoned Property Law is abundantly clear: it states that any person who fails to pay or deliver property to the State "shall pay . . . interest"; it describes the amount of interest, and for what period it must be paid. Accordingly, no further assessment needs to be made. While the words "shall pay" or "shall be liable" may not automatically trigger an actionable "obligation" in every instance, it is not necessarily about whether the word "shall" is used—rather the inquiry is on whether there is some{**65 Misc 3d at 715} sort of step in between the statutory violation and a defendant's duty to pay; and, notably, whether that step involves some sort of discretionary act from the government (cf. defendants' mem at 11 [where "the Fifth Circuit rejected the reverse FCA claim" "(n)oting that § 2614(a) 'grants the EPA discretion whether a penalty should be assessed' including the ability to assess no penalty at all"], quoting Simoneaux, 843 F3d at 1040). There is no intermediary step here, as there may have been in Simoneaux.

Simoneaux is also distinguishable on the grounds that " 'interest is not a penalty' " (J. D'Addario & Co., Inc. v Embassy Indus., Inc., 20 NY3d 113, 117-118 [2012] ["The breaching party is required to pay interest despite lacking possession or enjoyment of the property in order 'to make (the) aggrieved party whole' " (citations omitted)]). Indeed, the statute almost seems quasi-contractual in nature, in which case it is precisely the type of obligation envisioned under the FCA (see Bahrani, 465 F3d at 1196 [discussing the differences between cognizable obligations and contingent obligations such as fines or penalties, and noting that an FCA "obligation" may arise " 'at least where the statute or regulation imposes an obligation essentially contractual in nature' "], quoting American Textile Mfrs. Inst., Inc. v The Ltd., Inc., 190 F3d 729, 737-738 [6th Cir 1999]).

A plain reading of the statute also demonstrates to the court that the "except[ion]" language, concerning the OSC's discretionary ability to waive interest, is just that—the exception and not the rule. As the relator and the OAG both point out, the statute's language contemplates that, upon failure or late payment of abandoned properties to the State, the obligation to pay interest automatically arises. However, it also contemplates that the State, in its discretion, may waive the payment of such interest. In other words, the obligation to pay is qualified only by a separate discretionary waiver; the statute does not provide for a discretionary waiver or other act in the first instance (see Condor Funding, LLC v 176 Broadway Owners Corp., 147 AD3d 409, 411 [1st Dept 2017] ["Waiver is an intentional relinquishment of a known right"], quoting Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). As the OAG aptly stated in its letter, "[b]y granting the Comptroller the power to waive interest [*5]payments, the Legislature recognized that he first had a right to receive those payments" (NYSCEF Doc No. 61 at 3). Further, to put the discretionary{**65 Misc 3d at 716} waiver first before finding an obligation to pay would essentially swallow the whole provision and render what came before it meaningless; such a construction is impermissible (see Matter of Avella v City of New York, 29 NY3d 425, 434 [2017], quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]; McCluskey v Cromwell, 11 NY 593, 601-602 [1854] ["Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation"]).

Because the court finds that the statutory language is "free from ambiguity and doubt, and express[es] plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation" (McCluskey, 11 NY at 601-603). Thus, defendants' suggestions that the OSC letter, Handbook, and website should be afforded weight to infer otherwise is unavailing.

Moreover, even if such outside evidence were to be examined in determining the duty arising from the statute, the OSC letter and Handbook could be read as consistent with the interpretation advanced by relator and the OAG (see Valentin v Parisio, 119 AD3d 854, 855 [2d Dept 2014] [evidence should be viewed in favor of nonmovants, and all inferences drawn in their favor]; Melendez v Dorville, 93 AD3d 528 [1st Dept 2012]). The specific language on which the defendants focus ("can charge you late filing interest" and the "potential" for the "imposition of interest at the discretion of the Comptroller" [emphasis added]) arguably does nothing more than simply restate the statute; in sum—that interest applies unless the Comptroller decides otherwise, and, as a result, some reporters will not have to pay the interest. Such discretionary acts, when actually exercised or performed, may have some bearing on the ultimate collection of interest, but importantly do not take relator's claims outside the type of straightforward statutory "obligation" that is actionable under the FCA (see Bahrani, 465 F3d at 1203-1204).^[FN5]

Further, to the extent that the court needs to look elsewhere in interpreting the statute, the court finds that the legislative{**65 Misc 3d at 717} history supports the fact that the obligation to pay arises as soon as the holder is late in payment or delivery of the property (see relator's mem at 11). The Comptroller's May 25, 1971 report to the Governor in the bill jacket of the legislation adding the subject interest provision stated that the bill was "designed to fill" a "vacuum" for late delivery, and that "[f]rom a fiscal standpoint the new provision relating to interest is certain to produce substantial financial receipts for the General Fund" (relator's mem at 14, quoting Fox aff, exhibit 3). Further, with the legislative amendment (L 1971, ch 669) came the specific line for holders to report late filing interest on the Form AC 2709—implying that the burden to determine the interest and pay it was upon the holders. In other words, there would be no need for a specific line, for the holder to fill out, if further action from the OSC was required before imposing interest.

Essentially, since the Abandoned Property Law itself states that its sections are meant to be "liberally [*6]construed" (Abandoned Property Law § 102), coupled with the idea that the FCA is meant to be given an expansive reading (see Bahrani, 465 F3d at 1194; Kane, 120 F Supp 3d at 379), this court would be hard-pressed to find that there was no "obligation" here.

Accordingly, defendants are unable to meet their prima facie burden to establish that there was no obligation to pay late filing interest, or to accurately report information related to the same.

"Material"

The New York FCA defines "material" as "having a natural tendency to influence, or be capable of influencing the payment or receipt of money or property" (State Finance Law § 188 [5]).^[FN6] The materiality element "inquiry 'focuses on the potential effect of the false statement when it is made, not [necessarily] on the actual effect of the false statement when it is discovered' " (Bahrani, 465 F3d at 1204, quoting United States ex rel. A+ Homecare, Inc. v Medshares Mgt. Group, Inc., 400 F3d 428, 445 [6th Cir 2005]). Thus, "The fact that a government official may subsequently waive an established fee does not negate the 'potential effect' of a false record or statement" (Bahrani, 465 F3d at 1204). However, as the Supreme Court more recently held, "in assessing materiality, we 'look to the effect on the {**65 Misc 3d at 718}likely or actual behavior of the recipient of the alleged misrepresentation' " (Grabcheski v Am. Intl. Group, Inc., 687 Fed Appx 84, 87 [2d Cir 2017], quoting Escobar, 579 US at —, 136 S Ct at 2002). Thus, likely or actual effects on the government's behavior may be considered as evidence of materiality but is not necessarily dispositive one way or the other (see Escobar, 579 US at —, 136 S Ct at 2002-2004). Further, materiality "cannot be found where noncompliance is minor or insubstantial" (579 US at —, 136 S Ct at 2003).

Defendants rely on the OSC letter to infer that, because an audit was conducted and the Office of Unclaimed Funds at the OSC determined, in that instance, "that the circumstances warranted the waiver of late filing interest," that this is "strong evidence" that the violation of the statute is not material. Defendants further note that, even though the OSC can see that property was escheated late, the OSC still decided not to impose interest and therefore demonstrates a lack of materiality.

Initially, the court notes that defendants' arguments are premised upon the inaccurate presumption that a decision to impose interest needed to have been made by the OSC in the first place (i.e., their argument above on the contingent obligation)—this was rejected as set forth above.

Even if the court were to accept the premise, the argument appears to be applicable only to the allegations regarding the failure to pay the interest and does not seem to apply to the allegations regarding falsification of the property information on the reports. For example, it might be one thing for the OSC to clearly see that property was escheated late according to the information given, take note that no interest was paid, and waive it. It is quite another thing if the information was falsified such that the OSC did not even know the true length of time the property had been dormant—in which case, defendants provide no explanation or evidence on the OSC's "likely or actual behavior" to render such action immaterial to the OSC's receipt of money.

[2] Defendants rely heavily on a few words of Escobar. However, the Supreme Court's [*7]overall guidance (see Escobar, 579 US at —, 136 S Ct at 2003-2004) does not translate with such equal force in this instance where the issue is the government's passive receipt of money—which involves no decision-making step to pay money (see 579 US at —, 136 S Ct at 2004 [discussing whether a certification regarding a statutory{**65 Misc 3d at 719} violation is material if the defendant knows it would "entitle( ) (the government) to refuse payment were it aware of the violation," and holding that is not the sole standard to affirmatively find "materiality"]). The court finds that the OSC letter (and the weight and meaning that defendants afford it) would not be dispositive even under Escobar's standards. In other words, the OSC letter is insufficient evidence to support the contention that the one-time waiver itself demonstrates, prima facie, that the defendants' statutory violations were not material to the government's receipt of money. As relator noted, there may have been many other factors guiding the OSC's decision to waive interest in that instance. Accordingly, while the OSC letter might be relevant evidence,^[FN7] it cannot be said, as a matter of law, that the inferred fact of waiver dispositively negates the materiality element as it applies to all allegations in this action. A resolution of the materiality issue must therefore await further factual development.

Based upon the foregoing, it is ordered that defendants' motion (mot seq 002) is denied.