Conflicting Requirements of Notice: The Incorporation of Rule 9(b) into the False Claims Act's First-to-File Bar

Authors

Brian D. Howe, University of Michigan Law School

Abstract

Intended to prevent fraud against the government, the False Claims Act (“FCA”) contains a qui tam provision allowing private individuals, known as relators, to bring suits on behalf of the government and receive a portion of the damages. At the heart of the qui tam provision lies the first-to-file bar, which provides that, once a first relator has filed a complaint, subsequent relators are prohibited from coming forward with complaints based on the facts underlying the first relator’s pending action. A circuit split has recently emerged regarding the incorporation of Federal Rule of Civil Procedure 9(b)’s heightened pleading standard into the FCA’s first-to-file rule. Neither the circuit court decisions nor the relevant scholarship on this issue, however, has provided a comprehensive explanation as to why the government’s notice requirements should differ—if indeed they should differ at all—from defendants’ notice requirements for purposes of the first-to-file bar. This Note aims to fill that void and argues that, unlike garden-variety civil defendants in an adversarial context, the government maintains a partnership with the relator and has sufficient investigatory tools beyond the four corners of the complaint to assess adequately the merits of the relator’s allegations. Thus, the government does not require the heightened notice of Rule 9(b) at the first-to-file stage, and courts should ultimately adopt the approach employed by the First and D.C. Circuits in affording preclusive effect to first-filed FCA complaints, even if they are deficient under Rule 9(b).

Recommended Citation

Brian D. Howe, Conflicting Requirements of Notice: The Incorporation of Rule 9(b) into the False Claims Act's First-to-File Bar, 113 Mich. L. Rev. 559 (2015).
Available at: https://repository.law.umich.edu/mlr/vol113/iss4/3