First-to-File Rule Decisions

whistleblower_successesUnder the so-called “first-to-file” rule, a whistleblower is precluded from bringing a False Claims Act case if one based on the same underlying facts is already pending.

Here are some of the more recent court decisions on the scope and reach of this rule:

July 10, 2015

Ninth Circuit Victory For Whistleblowers In Narrowing “Public Disclosure” And “First-To-File” Bars To Bringing Qui Tam Actions

By Gordon Schnell

In a major victory for whistleblowers, the Ninth Circuit in United States ex rel. Hartpence v. Kinetic Concepts, Inc. narrowed the reach of two significant bars to bringing qui tam lawsuits under the False Claims Act.  Under the so-called “public disclosure” bar, the Ninth Circuit reversed its own precedent and ruled the “original source” exception to the bar does not require the whistleblower to have played a role in the public disclosure.  And under the so-called “first-to-file” bar, the Court took a similarly expansive approach, narrowing the circumstances under which one whistleblower action will bar a subsequently filed related action.  Taken together, these twin rulings in this en banc decision reflect a clear recognition by the Ninth Circuit of the strong Congressional policy of encouraging and rewarding whistleblowers for supplementing government fraud enforcement.
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July 2, 2015

DC Circuit Limits Reach Of False Claims Act First-To-File Bar

By the C|C Whistleblower Lawyer Team

And yet another appellate court decision reining in the reach of the first-to-file bar for whistleblowers under the False Claims Act.  This one decided by the DC Circuit in United States ex rel. Heath v. AT&T.  Before the Court was the question of whether a whistleblower action against AT&T for allegedly engaging in a nationwide scheme of overcharging the government was barred because of an earlier filed suit challenging a much narrower band of this alleged misconduct.  The Court held it was not, applying a strict reading of what constitutes “related” actions under the first-to-file rule.
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May 28, 2015

Supreme Court in Carter Decision Narrows Scope of Whistleblower First-To-File Bar

By the C|C Whistleblower Lawyer Team

Under the False Claims Act’s so-called first-to-file rule, a whistleblower may not bring a qui tam action “based on the facts underlying [a] pending action.”  There has always been some uncertainty as to how far this whistleblower bar extends — whether it applies only when the related claims of the “pending” action remain live, or whether it blocks those claims in perpetuity.  In a clear victory for whistleblowers this week, the Supreme Court in Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter upheld the more limited reach of the first-to-file bar.*
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December 11, 2014

First Circuit Weighs In On Scope of False Claims Act “First-To-File” Bar

By Gordon Schnell

Under the so-called “first-to-file” rule, a whistleblower is precluded from bringing a False Claims Act case if one based on the same underlying facts is already pending. This pressure to be first to the courthouse forces whistleblowers to make a tradeoff between the speed and quality of their False Claims Act filing. In United States ex rel. Sun v. Baxter Healthcare Corp., the First Circuit recently gave its view on just how much of a tradeoff whistleblowers should be required to make.
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April 24, 2014

DC Circuit Creates Split on Scope of First-to-File Rule Under False Claims Act

By the C|C Whistleblower Lawyer Team

Under the so-called first-to-file rule, “[w]hen a person brings an action under the False Claims Act, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The rule serves two primary purposes. It encourages whistleblowers with allegations of fraud to come forward as quickly as possible by creating a race to the courthouse with only one possible winner. It also discourages and ultimately blocks copycat actions that provide no additional information to the government.
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