Under 31 U.S.C. § 3730(b)(5), when a whistleblower files a False Claims Act (FCA) lawsuit, no other person may bring a related action based on the same underlying facts. This first-to-file rule functions much like the original source rule, baring subsequent attempts to file suits based on information already available to the government. However, unlike the original source rule, there are no exceptions. United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181 (9th Cir.), cert. denied, 534 U.S. 1040 (2001).
The rigidity of this rule makes it an important point of emphasis during the initiation of a FCA lawsuit. If the whistleblower is concerned that others will win the foot race to file, he may consider expediting the complaint and disclosure statement to ensure compliance with this rule. After all, Rule 15 of the Federal Rules of Civil Procedure allows a party 21 days to amend their complaint as a matter of course. This means a bare-bones complaint can be filed to ensure the whistleblower is the first-to-file, then amended to beef up the pleading as necessary.
Furthermore, according to some circuit precedent, this bare-bones complaint need not pass Rule 9(b)’s heightened pleading standards to qualify as the first-in-time filing. See United States ex rel. Heineman-Guta v. Guidant Corp., 718 F.3d 28 (1st Cir. 2013). Rule 9(b) requires plaintiffs to plead fraud with particularity, generally requiring the “who, what, when, where, and how” of the fraud. Smith, 796 F.3d at 432. While the heightened pleading standard is mandatory, that requirement can be met in the amended pleading. See Heineman-Guta, 718 F.3d at 35. The first-filed complaint need only “provide the government with sufficient notice of potential fraud.” Id.
While such a strategy might be necessary to pass the first-to-file test, it is risky and should only be pursued if absolutely necessary. Consulting with an experienced whistleblower attorney is the only safe course of action to determine what your first steps should be.
If you have uncovered fraud against the government, contact the whistleblower attorneys at Miller Law Group today for a free consultation or call us at (919) 348-4361. Our team can help guide you through the entire whistleblower process.