The United States Court of Appeals for the First Circuit recently heard oral arguments in United States ex rel. Heineman-Guta v. Guidant Corp., et al. (12-1867). During oral argument, the panel considered, among other issues, the standard for evaluating whether a complaint was barred under the False Claims Act’s (“FCA”) “first-to-file” rule, and in particular, whether a first-filed complaint must satisfy Fed. R. Civ. P. 9(b) in order to trigger the rule. This same issue is the basis for a recent circuit split among certain federal Courts of Appeals, with the Sixth and Ninth Circuits on one side, and the D.C. Circuit on the other. The decision in Heineman-Guta could ultimately align the First Circuit with one of those stances, or potentially carve out a new, third position altogether.
Circuit Split Surrounding the First-To-File Rule -
Under the first-to-file rule, when an individual files an action, no person other than the government may bring a related action based on the facts underlying the pending case. See 31 U.S.C. § 3730(b)(5). In the last decade, both the Sixth and Ninth Circuits have refused to apply the first-to-file bar when the first-filed complaint failed to satisfy Rule 9(b)’s heightened particularity requirement, reasoning that a deficient complaint could “not properly qualify as a ‘pending action’” under the FCA. United States v. ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 516 (6th Cir. 2009) (internal citations omitted); see also Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 (6th Cir. 2006); Campbell v. Redding Med. Ctr., 421 F.3d 817, 825 (9th Cir. 2005).
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