In U.S. ex rel. Heineman-Guta v. Guidant Corp.,1 the U.S. Court of Appeals for the First Circuit held that under the False Claims Act’s jurisdictional “first-to-file” rule, a qui tam complaint can bar a later-filed qui tam complaint based on the same “essential facts” regardless of whether the earlier-filed complaint satisfies the heightened fraud-pleading standard of Federal Rule of Civil Procedure 9(b). As the First Circuit explained, the earlier complaint need only give the government “sufficient notice to initiate an investigation” into the alleged fraud.2 The Guidant decision thus joined the D.C. Circuit’s 2011 decision in U.S. ex rel. Batiste v. SLM Corp.3 in rejecting the Sixth Circuit’s contrary conclusion in Walburn v. Lockheed Martin Corp.4

The first-to-file bar, set forth at 31 U.S.C. § 3730(b)(5), provides that “[w]hen a person brings an action” under the False Claims Act (FCA), “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” In Guidant, relator Heineman-Guta alleged that the defendants had defrauded Medicare by giving physicians kickbacks to encourage them to implant the defendants’ medical devices (or to refer patients to other physicians who would implant the devices).5 The defendants moved to dismiss Heineman-Guta’s complaint under the first-to-file bar, because an earlier-filed complaint against them had alleged this same scheme. Heineman-Guta responded that the earlier complaint could not bar her own complaint because it lacked her level of detail about specific physicians and locations, and thus failed to satisfy Rule 9(b)’s requirement that fraud be alleged with “particularity.”6 The district court rejected this Rule 9(b) argument and dismissed Heineman-Guta’s case.

The First Circuit affirmed that dismissal, emphasizing that Rule 9(b) and § 3730(b)(5)’s first-to-file bar serve different policies. Rule 9(b) focuses on “deterrence” by protecting defendants from “frivolous accusations” of fraud and allowing them to prepare “an appropriate defense.”7 By contrast, the first-to-file bar focuses on “preclusion” and its sole purpose is to encourage relators “to promptly notify the government about the essential facts of a fraudulent scheme” so that it may decide whether to investigate.8 Thus, “[o]nce the government is put on notice of its potential fraud claim, the purpose behind allowing qui tam litigation is satisfied,” and any later, duplicative qui tam suits must be dismissed for lack of subject matter jurisdiction.9

Applying these principles, the First Circuit concluded that the earlier-filed complaint had already given the government sufficient notice to launch an investigation into conduct covered by Heineman-Guta’s own complaint. The earlier complaint had alleged that the defendants “used various forms of kickbacks including lavish dinner programs, honoraria and grants, to induce physicians and hospitals to use [their] products and, in doing so, caused false claims to be submitted to obtain reimbursement from the government under Medicare.”10 Even though Heineman-Guta’s later complaint offered additional details about “particular incidents, dates, times [and] names of physicians,” these specifics “merely echo[ed] the alarm sounded” by the earlier relator and were therefore jurisdictionally barred.11

Despite the First Circuit’s nominal split with the Sixth Circuit’s 2005 ruling in Walburn, the Guidant decision is merely the latest in a line of cases that emphasize the “government notice” function of the qui tam regime. Post-Walburn cases have consistently interpreted the first-to-file bar by looking more generally, as the Guidant district court did, at whether the first-filed complaint “provided the government sufficient notice that it was the potential victim of fraud worthy of investigation . . .”12 These broad interpretations of § 3730(b)(5) reflect the reality of civil FCA investigations. The government has powerful tools to investigate alleged fraud and abuse in federal programs, such as civil investigative demands and administrative subpoenas,13 and it often uses them to probe far beyond the four corners of the particular qui tam complaint that inspired the investigation. Accordingly, Guidant and similar cases merely acknowledge what the FCA bar has long known: even if a qui tam complaint fails to give a defendant enough information to defend itself, that same complaint can still give the government more than enough to spark an investigation that needs no additional relators to fuel the fire.