OtterBox Faces Whistleblower Suit From Customs Broker for Ignoring Assists in Transaction Value
A customs broker is embroiled in a whistleblower suit against cellphone case seller OtterBox, alleging the company knowingly failed to include assists in the transaction value of merchandise it imported from China over a five-year period. Former OtterBox employee and licensed customs broker Bonnie Jimenez filed the False Claims Act suit at the Colorado U.S. District Court in 2011, but it wasn’t made public until about one month ago. She says she repeatedly told management that OtterBox was undervaluing cellphone cases that it imported from China, but that management deliberately ignored her pleas. OtterBox moved to dismiss the case on Sept. 25, saying that a prior disclosure of the violations filed with CBP before the Jimenez lawsuit protected it from a whistleblower case.
Customs Broker Employee ‘Consistently’ Warned OtterBox of Undervaluation
OtterBox imports most of its products from China, where they are made to specification by unrelated manufacturers. Part of that process includes work by an independent engineering company in China, which assists the manufacturer in developing the one-off tools and molds necessary to make the cellphone and tablet cases. OtterBox pays the engineering company and the manufacturer for engineering work and the cost of the new tools and molds, separately from payment for the finished product imported from China. An internal OtterBox document valued the cost of the tooling alone at $2,500 to $12,000 per mold.
Jimenez says the tools, molds, and engineering work all qualified as assists under 19 CFR 152.102(a) that needed to be added to the transaction value. But in her complaint, she says that from 2006 through 2011 OtterBox deliberately ignored the requirement to include assists in transaction value, undervaluing its merchandise on customs documentation so as to pay less in duties, the complaint said.
Jimenez was hired by OtterBox in August 2009, and was quickly promoted to supply chain director about three months later. From August 2009 going forward, Jimenez “consistently” warned higher-ups at OtterBox that the company needed to increase its transaction values to account for the engineering work and molds, she said. That included OtterBox controller Jane Everhart and CEO Curtis Richardson, who allegedly said that CBP would “have to pry that money out of my cold dead hands before I will pay it.” Jimenez also alleged that company president Brian Thomas had knowledge of the situation. Jimenez was fired from the company in August 2010 after “[detailing] her plan to bring OtterBox into compliance,” the complaint said.
Jimenez filed the whistleblower suit in November 2011 in Colorado U.S. District Court, but the judge sealed the case. She later amended her complaint in August 2013. The case was partially unsealed at the request of the U.S. government in early September. The government has so far declined to intervene, but said it is investigating the matter.
OtterBox Moves to Dismiss; Whistleblower Suit Precluded by Prior Disclosure
OtterBox subsequently moved to dismiss the case Sept. 25. The company says it filed a prior disclosure with CBP in November 2010, and the company’s failure to include assists in transaction value is currently the subject of a CBP penalty proceeding. That means Jimenez can’t file a whistleblower lawsuit, because the False Claims Act bars cases that are already under government investigation, OtterBox said. This limitation prevents opportunists from filing lawsuits that don’t seriously contribute to the disclosure of fraud, it said. Because the prior disclosure already informed CBP of the violations, Jimenez’ case “add[s] nothing to the Government's efforts to discover a fraudulent scheme and pursue a claim for relief,” the motion to dismiss said.
Email ITTNews@warren-news.com for a copy of the complaint and the motion to dismiss.