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November 16, 2021

7 Due Diligence Issues to Avoid False Claims Act Lawsuits

Nelson Mullins partners Jennifer Malinovsky and Ed White join Alice Harris, an attorney with Nexsen Pruet, to go over the key compliance areas to look for in due diligence. 

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Erika C. Birg

Erika C. Birg

Partner

Atlantic Station
201 17th Street NW
Suite 1700
Atlanta, GA 30363
50 N. Laura Street
41st Floor
Jacksonville, FL 32202
erika.birg@nelsonmullins.com
+ Other Locations

Erika focuses on helping companies protect their businesses before, during, and after litigation, with experience in resolving business–to–business disputes through litigation, alternative dispute resolution, and state and federal appeals involving business torts, contract disputes, trade secret misappropriation, computer fraud, and non–compete matters.

Erika focuses on helping companies protect their businesses before, during, and after litigation, with experience in resolving business–to–business disputes through litigation, alternative dispute resolution, and state and federal appeals involving business torts, contract disputes, trade secret misappropriation, computer fraud, and non–compete matters.

Erika C. Birg

Erika focuses on helping companies protect their businesses before, during, and after litigation, with experience in resolving business–to–business disputes through litigation, alternative dispute resolution, and state and federal appeals involving business torts, contract disputes, trade secret misappropriation, computer fraud, and non–compete matters.

Experience

Following is a selected sampling of matters and is provided for informational purposes only. Past success does not indicate the likelihood of success in any future matter.

Experience

  • Has led litigation teams in complex commercial litigation cases in arbitration and in court involving alleged fraud, trade secret misappropriation, misuse of intellectual property, defamation, breach of fiduciary duties, and breach of contract claims
  • Has handled all forms of customized dispute resolution, including mediation and arbitration, and, of course, litigation in federal and state courts
  • Has consulted with clients and corporate attorneys on revisions to business–to–business merger and asset acquisition contracts, limited liability company agreements, employment agreements, invention assignment agreements, and noncompetition agreements, as well as confidentiality and non–disclosure agreements designed to protect commercially sensitive and proprietary information
  • Has presented and written on topics related to arbitration, trade secrets, and restrictive covenants
  • Has led teams in internal investigations and State of Georgia bid protests

Representative Engagements – Intellectual Property, Trade Secret, and Unfair Competition Litigation

  • Successfully defended software company in federal court in alleged $34 million trade secret dispute. Won full dismissal on summary judgment
  • Prosecuted claims against business competitors for trade secret misappropriation, false advertising, and unfair competition in federal courts in two states and defended against counterclaims alleging unfair competition and violations of the Lanham Act; successfully resolved
  • Successfully defended national company against allegations of trademark infringement in federal court
  • Successfully defended innovative technology company against patent and Lanham Act claims in federal court
  • Represented national companies as plaintiffs’ counsel seeking to prevent misappropriation of trade secrets and breach of noncompetition agreements through injunctive relief and to recover damages through litigation
  • Defended companies (including start–ups) against claims of misappropriation and tortious interference with business and contractual relations. Several cases have involved multiple forums, including both arbitration and litigation, and simultaneous, parallel litigation in multiple states
  • Consulted by Georgia’s General Assembly on Georgia’s Restrictive Covenant Act prior to passage (2010–2011)
  • Counseled clients regarding updating confidentiality agreements and restrictive covenants
  • Worked directly with clients to identify and develop methods to protect trade secrets, including presenting internal seminars, engaging in trade secret audits, and revising policies and procedures

Representative Engagements – Business Agreement Litigation and Dispute Resolution

  • Advised clients regarding contractual obligations before and after execution, regarding the enforceability of agreements, and about the duties arising by virtue of agreements, particularly the obligations of members and partners in the limited liability company and partnership arenas
  • Represented former CFO in arbitration over failure to pay transaction fee in start–up environment, winning $1 million and payment of all attorney's fees
  • Represented limited liability company members in various disputes involving claims of breach of fiduciary duty, conversion, and breach of the limited liability company agreement
  • Represented 50% shareholder of closely held corporation against other shareholder in dispute over misappropriation of corporate funds and abuse of fiduciary duty
  • Represented LLC manager and member in successfully vacating declaratory judgment rendered in arbitration award
  • Defended company against claims for breach of contract and unjust enrichment related to work being performed at manufacturing facility and, in another matter, arising out of work performed at its foreign facilities (one case in federal court and another in arbitration)
  • Assisted real estate developer in an arbitration, prosecuting claims and defending counterclaims in breach of alleged oral contract and unjust enrichment claims relating to management of real property
  • Defended foreign manufacturer against breach of contract claims brought in federal court by U.S.–based distributor and in prosecution of counterclaims for breach of fiduciary duty, conversion, and breach of contract
  • Represented lenders in actions against guarantors in federal court and in arbitration, seeking recovery of outstanding loans; defended against lender liability claims, including claims asserted in the billions of dollars
  • Defended successor company for violation of merger agreement

Representative Engagements – Business Tort Actions

  • Prosecuted claims for company against business that submitted false invoices and prosecute claims for successor liability against related business; successfully resolved
  • Defended slander and libel claims brought in federal court against national association
  • Defended business owner against defamation claims arising out of a police report about a stolen trade secret (a chemical formula)
  • Defended lenders in counterclaims of lender liability, alleging breach of fiduciary duty and promissory estoppel in federal court and arbitrations
  • Represented local business in dispute with competitor over defamation claims
  • Successfully defended defendant in federal class action case alleging fraud and RICO conspiracy
  • Led defense of corporation and individual employee against claims of fraud and RICO conspiracy relating to terms of employment and exercise of certain stock options

Representative Engagements – Internal Investigations

  • Led nearly three–month internal investigation for government contractor upon discovery of employee–created conflicts of interest
  • Led internal investigation of billing practices of national professional services firm
  • Led internal investigation of C–Suite executive relating to claims of breach of fiduciary duty and potential misuse of corporate intellectual property
  • Led three teams in major internal investigation of accounting practices at Fortune 50 firm spanning over 18 months

Representative Engagements – Bid Protests

  • Represented services company in protesting Request for Proposal from Georgia Department of Administrative Services
  • Represented company in administrative bid protest before the State of Georgia Department of Administrative Services after full–scale re–bidding of project

Previous Professional Experience

  • Partner at another law firm in Atlanta and practiced in Washington, D.C. with Paul, Weiss, Rifkind, Wharton & Garrison LLP

Education

  • Emory University School of Law
  • University of North Carolina at Chapel Hill

Admissions

  • District of Columbia
  • Florida
  • Georgia
  • Supreme Court of the United States
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. Court of Appeals for the Seventh Circuit
  • U.S. Court of Appeals for the Eleventh Circuit
  • U.S. District Court for the District of Colorado
  • U.S. District Court for the District of Columbia
  • U.S. District Court for the Middle District of Florida
  • U.S. District Court for the Southern District of Florida
  • U.S. District Court for the Northern District of Georgia
  • U.S. District Court for the Middle District of Georgia
  • U.S. District Court for the Southern District of Georgia

Clerkships

  • Law Clerk, The Honorable Stanley F. Birch, Jr., U.S. Court of Appeals for the Eleventh Circuit
  • Law Clerk, The Honorable Willis B. Hunt, Jr., U.S. District Court for the Northern District of Georgia

Practice Areas

Industries

The bar rules of some states require that the standards for an attorney's inclusion in certain public accolades or recognitions be provided. When such accolades or recognitions are listed, a hyperlink is provided that leads to a description of the respective selection methodology.

  • Senior Fellow, Litigation Counsel of America
  • Board Member, Atlanta Bar Association Dispute Resolution Section
  • Member, The American Arbitration Association's National Roster of Arbitrators for Large, Complex Commercial Disputes
  • Member, American Arbitration Association Innovation & Technology Council
  • Member, Florida Association for Women Lawyers
  • Member, Jacksonville Association for Women Lawyers
  • Member, National Litigation Executive Committee, The Federalist Society
  • Editorial Board Member (past), Georgia Bar Journal (1999–2001; 2006–2013)
  • Board of Directors, Federal Bar Association – Atlanta Chapter
  • Chair-Elect, State Bar of Georgia Alternative Dispute Resolution Section
  • Co-Chair, Trade Secrets and Employee Mobility Practice Group
  • Past President, Federal Bar Association – Atlanta Chapter
  • Past Chair, Atlanta Bar Association Dispute Resolution Section
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