June 10, 2013

First Circuit Upholds False Claims Act’s First-to-File Dismissal, Finding Prior Complaint Need Not Meet Rule 9(b)

Summary: On May 31, the First Circuit continued the trend of cases holding that an earlier-filed qui tam action need not meet Rule 9(b)’s heightened pleading standard in order to bar a later-filed qui tam under the Federal False Claims Act’s (FCA) first-to-file bar, 31 U.S.C. § 3730(b)(5). In U.S. ex rel. Heineman-Guta v. Guidant Corp., No. 12-1867, 2013 WL 2364172 (1st Cir. May 31, 2013), the First Circuit affirmed the district court’s dismissal of the later-filed complaint because an earlier-filed suit was sufficient to put the government on notice of the alleged fraud –  that the device manufacturer paid kickbacks to promote the sale and use of its cardiac rhythm management products – regardless of whether it was sufficiently pled to satisfy Rule 9(b). 

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