The First Circuit recently held that complaints filed first under the False Claims Act’s first-to-file rule do not need to satisfy Federal Rule of Civil Procedure 9(b)’s particularity requirement. See United States ex rel. Heineman-Guta v. Guidant Corp., 2013 WL 2364172 (1st Cir. May 31, 2013). Under the First Circuit’s holding, if two competing whistleblowers file FCA suits alleging the same essential facts, the first-filed complaint will preclude the later-filed suit, even when the first complaint is insufficient under Rule 9(b).

Background

In United States ex rel. Heineman-Guta v. Guidant Corp., two former employees filed separate complaints alleging Boston Scientific Corporation (“BSC”) paid physicians and hospitals to induce them to use BSC’s cardiac rhythm management devices in violation of the Anti-Kickback Statute. Heineman-Guta brought her action while the first-filed action was under seal. After the first-filed action was voluntarily dismissed, the district court dismissed Heineman-Guta’s complaint under the first-to-file rule. Heineman-Guta argued the first-to-file rule should not bar her complaint because the first-filed complaint lacked specific details about the kickback scheme as required by Rule 9(b).

Though the First Circuit agreed that complaints alleging fraud under the FCA must comply with Rule 9(b)’s pleading requirements, it noted that this inquiry was separate from the first-to-file question, which focuses only on whether the allegations in the first-filed complaint gave the government adequate notice of potential fraud.

After reviewing the statute and congressional intent, the First Circuit held that the first-to-file rule did not incorporate the 9(b) pleading standard. It also noted that the purpose of the first-to-file rule (providing notice of potential fraud) differed from that of Rule 9(b) (protecting defendants in fraud cases from frivolous accusations).

Because Heineman-Guta’s complaint alleged the same essential facts as the first-filed complaint, the First Circuit held that the first-to-file rule precluded her later-filed suit.

Impact

In addition to the First Circuit, only the D.C. Circuit and the Sixth Circuit have directly addressed the question of whether Rule 9(b) applies to the first-to-file rule. The First Circuit relied heavily on the D.C. Circuit’s holding in United States ex rel. Batiste v. SLM Corporation, 659 F.3d 1204 (D.C. Cir. 2011), and stated that its holding was contrary to Walburn v. Lockheed Martin Corporation, 431 F.3d 966 (6th Cir. 2005). Thus, according to the First Circuit, there is a growing circuit split on this important issue under the FCA.