Under the Federal False Claims Act (“FCA”), the number of potential Relators is generally limited by the “first-to-file” rule (31 U.S.C. § 3730(b)(5)) which bars a second Relator from filing a qui tam complaint that is similar to a first Relator’s complaint, even in different jurisdictions. Unfortunately, this bar had been lowered by the 6th Circuit’s opinion in Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 (6th Cir. 2005), where it was held that the first-filed “complaint’s failure to comply with Rule 9(b) rendered it legally infirm from its inception, and therefore it cannot preempt [the later-filed] action under the first-to-file bar.”
Fortunately, the D.C. Circuit has recently disagreed with the 6th Circuit and raised the bar back to a rational place. In United States, ex rel. Batiste v. SLM Corporation (D.C. Cir., Nov. 4, 2011, No. 10-7140), the D.C. Circuit struck a blow to Relators by affirming the district court’s dismissal of a qui tam complaint on the ground that an earlier-filed complaint barred consideration of the later-filed complaint regardless of whether the earlier-filed complaint met the heightened pleading standard of Fed.R.Civ.P. 9(b):...
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