Amended FCA Complaint Cannot Cure A First-to-File Violation

The Second Circuit Court of Appeals recently held that a False Claims Act (FCA) relator could not evade the FCA's first-to-file bar by filing an amended complaint after two earlier-filed FCA suits alleging similar conduct had been dismissed. United States ex rel. Wood v. Allergan, Inc., No. 17-cv-2191 (2d Cir. July 17, 2017). The FCA's first-to-file bar prohibits a relator from bringing a "related action" when an FCA lawsuit is "pending." In Wood, relator filed his complaint after two other FCA lawsuits covering substantially similar conduct had been filed. After the first two suits were dismissed, relator amended his FCA complaint. The Second Circuit reversed the district court, deciding that an amended complaint cannot cure a violation of the first-to-file bar, and remanded the case to be dismissed.