First Circuit Applies First-To-File Rule in False Claims Act Case

The First Circuit has held that when two False Claims Act whistle-blower complaints are filed arising out of the same underlying facts, the first complaint filed will preclude the second complaint, according to a National Law Review article.

In May 2006, a former Bristol-Myers Squibb manager filed a lawsuit against Bristol-Myers and Sanofi-Aventis under the qui tam, or whistle-blower, provision of the False Claims Act. The lawsuit alleged the two companies had promoted Plavix for off-label uses and knowingly caused healthcare organizations to submit false claims to the government, according to the report.

In September 2006, a second whistle-blower filed suit against Bristol-Myers and Sanofi-Aventis also alleging the companies promoted Plavix for off-label uses. However, the off-label uses for Plavix the companies allegedly promoted in the second suit were different than the ones identified in the first suit, according to the report.

Although the facts alleged in the two suits were not identical, the First Circuit court affirmed the trial court's holding that the first-to-file rule applied because the second complaint did not alert the government to a new fraud scheme and the first suit provided essential facts to give the government notice of the fraudulent practices.

The court also emphasized the purpose of the first-to-file rule is to incentivize whistle-blowers to quickly alert the government of fraud.

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