Division Among Courts Intensifies Regarding False Claims Act's First-to-File Requirement

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Last week, the United States District Court for the District of Massachusetts found that a relator’s complaint was barred by the False Claims Act’s (“FCA’s”) first-to-file requirement and dismissed relator’s complaint. United States ex rel. Heineman-Guta v. Guidant Corp., et al. (No. 09-CV-11927-RGS). In holding that a previously-filed complaint does not need to satisfy Federal Rule of Civil Procedure 9(b) in order to bar a later-filed FCA claim, the court intensified a developing divide among courts about the breadth of the FCA’s first-to-file rule.

Two Approaches to First-to-File

The FCA’s first-to-file requirement—designed to prevent repetitive lawsuits and incentivize relators to alert the government promptly of alleged fraudulent activity—acts as a jurisdictional bar to later-filed complaints that allege the same essential elements as another “pending action.” In the last decade, two federal Courts of Appeal have refused to apply the first-to-file bar when the first-filed complaint was “either jurisdictionally precluded or legally incapable of serving as a complaint” on the theory that a deficient complaint would “not properly qualify as a pending action” under the FCA. United States 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 (6th Cir. 2005); Campbell v. Redding Med. Ctr., 421 F.3d 817, 825 (9th Cir. 2005).

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