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Complaint — United States ex rel. GNGH2 Inc. v. Immco Diagnostics Inc. (No. 6:24-cv-06358, W.D.N.Y.)

Summary

A qui tam complaint under the False Claims Act filed under seal by relator GNGH2 Inc. on behalf of the United States against Immco Diagnostics Inc. and Primus Corporation, Case No. 6:24-cv-06358-FPG, in the U.S. District Court for the Western District of New York, filed June 10, 2024 as Document 1. The complaint alleges the defendants, subsidiaries of Trinity Biotech that make and sell diagnostic test kits, falsely certified they met size standards when they received second draw PPP loans of $1,042,255 (2/27/21) and $721,530 (1/30/21). It asserts a claim under 31 U.S.C. Section 3729(a)(1)(B) and states the United States paid totals of $1,079,205.08 and $747,327.17 including processing fees. It seeks judgments of $3,237,615.24 against Immco and $2,241,981.51 against Primus, and is filed by relator's counsel David Abrams.

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Cite this document

“Complaint — United States ex rel. GNGH2 Inc. v. Immco Diagnostics Inc. (No. 6:24-cv-06358, W.D.N.Y.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/complaint-no-6-24-cv-06358-dkt-1-w-d-n-y-1c16ade28e/, SHA-256 a162ca071f98dfba45bb5fbe083426698f1d0c92a9a550ae9d0cf133ec03642f.

Full text

       Case 6:24-cv-06358-FPG      Document 1      Filed 06/10/24   Page 1 of 7




David Abrams, Attorney at Law(NY 3051604)
PO Box 3353 Church Street Station
New York, NY 10008                                                            flLED
212-897-5821 dnabrams@gmail.com

United States District Court
Western District of New York

                                                     TO BE FILED UNDER
United States of America ex rel.                     SEAL
GNGH2 Inc.,
                   Plaintiff-Relator,

            - against -                              CaseNo.a4-e.N/-to3>5S--fPGi

IMMCO DIAGNOSTICS INC. a/k/a                         Complaint Under the False
IMMCO DIAGNOSTICS DELAWARE                           Claims Act
& PRIMUS CORPORATION,

                   Defendants.



      Plaintiff-Relator, complaining ofthe Defendants by its attorney, David

Abrams, Attorney at Law,respectfully sets forth and alleges as follows:

1.    Nature of the Case


I.    This is a false claims act claim. The Qui Tam Plaintiff and Relator, GNGH2

Inc.("Relator"), alleges that the Defendants fraudulently obtained CARES Act

disaster relief by means offraudulent certifications of eligibility. As set forth in

more detail below, second-round PPP funding is barred to entities which exceed

size standards.
       Case 6:24-cv-06358-FPG      Document 1     Filed 06/10/24   Page 2 of 7




II.   Parties


2.    Defendant IMMCO DIAGNOSTICS INC. a/k/a IMMCO DIAGNOSTICS


DELAWARE("Immco")is a Delaware business corporation with a principal place

of business in Erie County, New York,

2a.   Defendant PRIMUS CORPORATION ("Primus") is a Missouri business

corporation with a principal place of business in Chautauqua County, New York.

3.    The Relator, GNGH2 Inc.("Relator" or "Plaintiff) is a New Jersey

corporation with a principal office in Bergen County, New Jersey.

Ill   Compliance with Requirements of Suit

4.    This matter will be filed under seal pursuant to 31 U.S.C. Section 3730(b)

and at or about the same time, a copy ofthe Complaint, any Sealing Order, and

Relator's disclosure of evidence will be served on the Department of Justice and

the United States Attorney for the District in which this matter has been filed.

5.    Relator will not serve the Complaint or any other papers in this matter until

and unless it becomes unsealed. Thus,ifthe Complaint is served on the

Defendant, it means that the matter has been duly unsealed.

rV.   Jurisdiction and Venue


6.     This Court has jurisdiction pursuant to 31 U.S.C. Section 3732(a) which

provides that this type of action may be brought in any district where any
       Case 6:24-cv-06358-FPG       Document 1     Filed 06/10/24    Page 3 of 7




Defendant resides or transacts business. In this case, the Defendants are located in

Buffalo, New York and Jamestown, New York.

V.    Background

7.    Throughout most of2020 and continuing into 2021, the United States was

faced with a large scale outbreak ofthe virus commonly known as "Coronavirus"

and "COVID-19." (the "Coronavirus Epidemic").

8.    In addition to the Coronavirus Epidemic itself, the United States was faced

with large scale outbreaks of panic and hysteria as a result ofthe Coronavirus

Epidemic.

9.    All ofthe above has resulted in major economic disruption and as a result

Congress enacted the Coronavirus Aid, Relief, and Economic Security Act,

commonly known as the "CARES Act."

10.   The CARES Act contains a provision which permitted qualifying business

which were affected by the foregoing disruption to obtain forgivable disaster loans.

11.   The CARES Act was subsequently amended to provide for a second round

of disaster funding. Significantly, an applicant is ineligible for such funding it its

total size exceeds applicable standards.

                             [continued on next page]
       Case 6:24-cv-06358-FPG      Document 1      Filed 06/10/24    Page 4 of 7




12.   The Defendants in this matter are part of a concern which manufactures and

sells diagnostic test kits. They received second draw PPP disaster relief as follows:

Defendant          Date          Amount      Loan #                 Forgiven

Immco              2/27/21       $1,042,255 5070858508              9/17/21

Primus             1/30/21       $721,530    9201068310             10/19/21

13.   Thus, on or about on or about February 27,2021 and January 30,2021,the

Defendants respectfully certified that they met the applicable size standards.

14.   These certifications were false when made as set forth below.


15.   At all times relevant to this matter, the Defendants were subsidiaries of an

international firm called Trinity Biotech. The total size ofthe combined firm

exceeded applicable standards.

16.   Moreover,the foregoing information is available on the websites ofthe

Defendants and/or their corporate parent.

17.   Thus, Defendants' authorized representatives must have been either aware of

this information or reckless in regards to same.

18.   Thus, Defendant made a fraudulent representation when they completed

form 2483-SD and certified eligibility in respect ofthe above matters.

19.   As a result ofthese statements, the Defendant received (and the United

States paid)substantial funds to which it would not otherwise have been entitled.
       Case 6:24-cv-06358-FPG       Document 1     Filed 06/10/24   Page 5 of 7




VI. (Count I) Violation of the False Claims Act

20.   The False Claims Act imposes liability on a person or entity who

"knowingly makes, uses, or causes to be made or used, a false record or statement

material to a false or fraudulent claim" 31 U.S.C. Section 3729(a)(1)(B)

21.   The Courts have held that this can include false statements regarding

eligibility to participate in a program. See United States ex rel Kirk v. Schindler

Elevator Corp., 601 F.3d 94, 116(2d Cir. 2010), reVd on other grounds, 131 S.Ct.

1885(2011)("[C]laims may be false even though the services are provided as

claimed if, for example,the claimant is ineligible to participate in the program.")

22.   Thus, the Defendants' certifications of eligibility violated the False Claims

Act because they were false and required for eligibility for disaster relief.

VII. Relief Sought

23.   On behalf ofthe government, Relator is seeking judgment for triple damages

and civil penalties set forth in 31 U.S.C. Section 3729.

24.    With respect to Defendant Immco,the United States paid some

$1,047,937.43 in principal and interest in respect ofthe loan at issue plus

processing fees in the amount of$31,267.65 for a total of$1,079,205.08

25.   With respect to Defendant Primus,the United States paid some $725,681.27

in principal and interest in respect ofthe loan at issue plus processing fees in the

amount of$ 21,645.90 for a total of$747,327.17
       Case 6:24-cv-06358-FPG       Document 1    Filed 06/10/24   Page 6 of 7




26.   Accordingly, Relator seeks judgment in the amount of $3,237,615.24

against Defendant Immco and in favor ofthe United States, together with costs,

interest, civil penalties, an appropriate qui tam award, and such other and further

relief as the Court deems just.

27.   Further, Relator seeks judgment in the amount of $2,241,981.51 against

Defendant Primus and in favor ofthe United States, together with costs, interest,

civil penalties, an appropriate qui tam award, and such other and further relief as

the Court deems just.



                                  Respectfully submitted.




                                  David Abrams, Attorney at Law
                                   Attorney for Relator
                                  GNGH2 Inc.


                                  PO Box 3353 Church Street Station
                                  New York, NY 10008
                                  Tel. 212-897-5821
                                  Fax 212-897-5811


Dated:       Delhi, New York
             June 6, 2024
      Case 6:24-cv-06358-FPG         Document 1        Filed 06/10/24     Page 7 of 7

                            David Abrams, Attorney at Law
                   PO Box 3353 Church Street Station, New York NY 10008
                             Tel. 212-897-5821 Fax 212-897-5811
                                     Delhi, New York


                           TO BE SUBMITTED UNDER SEAL

June 6, 2024

To:    Clerk of the Court
        United States District Court Western District of New York
        100 State Street
        Rochester, NY 14614

Re:     United States ex rel. GNGH2,Inc. v. IMMCO DIAGNOSTICS INC. et al.
Dear Sir / Madam:

        I represent the Relator in the above-referenced matter. I am respectfully
submitting for filing under seal an original and 1 copy of(1)complaint;(2)civil cover
sheet; and(3)corporate disclosure. Please take note that pursuant to Local Rule 5.3(a),
no application is necessary for the sealing ofthis matter. See 31 U.S.C. Section
3730(b)(2).

        In addition, I am submitting a check in the amount of$405 and a self-addressed
envelope.

      I am requesting that you process the above documents and provide me with a file
stamped copy ofthe complaint for service on the United States Attorneys Office and the
Department of Justice.

        Thank you for your attention to this matter.
                                                       Sincerely yours,


                                                        17^ |J /ivT
                                                       David Abrams



 Enclosures


File and source

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1-complaint.pdf
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505,430 bytes
SHA-256
a162ca071f98dfba45bb5fbe083426698f1d0c92a9a550ae9d0cf133ec03642f
Our copy
1-complaint.pdf
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archive.org
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