First Circuit Deepens Circuit Split On Question Concerning The False Claims Act’s First-To-File Bar

On May 31, 2013, the First Circuit weighed in on a question concerning application of the False Claims Act's first-to-file bar that has split the circuits. In United States ex rel. Heineman Guta v. Guidant Corp., et al., (12-1867), the First Circuit held that the first-filed complaint need not satisfy Fed. R. Civ. P. 9(b)'s heightened pleading standard in order to bar a later-filed complaint. In doing so, the court expressly rejected the Sixth Circuit's approach. The First Circuit's opinion reaffirms that the first-to-file bar's focus is on whether the government has received adequate notice of potential fraud.

Disagreement Regarding the First-To-File Rule

Under the first-to-file provision of the FCA, when an individual files an action, "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). In several cases over the past few years, the Sixth Circuit has refused to apply