United States: First Circuit Deepens Circuit Split On Question Concerning The False Claims Act’s First-To-File Bar

On May 31, 2013, the First Circuit weighed in on a question concerning application of the False Claims Act's first-to-file bar that has split the circuits. In United States ex rel. Heineman Guta v. Guidant Corp., et al., (12-1867), the First Circuit held that the first-filed complaint need not satisfy Fed. R. Civ. P. 9(b)'s heightened pleading standard in order to bar a later-filed complaint. In doing so, the court expressly rejected the Sixth Circuit's approach. The First Circuit's opinion reaffirms that the first-to-file bar's focus is on whether the government has received adequate notice of potential fraud.

Disagreement Regarding the First-To-File Rule

Under the first-to-file provision of the FCA, when an individual files an action, "no person other than the government may intervene or bring a related action based on the facts underlying the pending action."31 U.S.C. § 3730(b)(5). In several cases over the past few years, the Sixth Circuit has refused to apply the first-to-file bar when the first-filed complaint failed to satisfy Rule 9(b)'s heightened particularity requirement, reasoning that a deficient complaint could "not properly qualify as a 'pending action'" under the FCA. United States v. ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 516 (6th Cir. 2009) (internal citations omitted); see also Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 (6th Cir. 2006).

In 2011, however, the D.C. Circuit departed from this approach, explaining that the language of the FCA's first-to-file provision does not incorporate Rule 9(b). United States ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1210 (D.C. Cir. 2011). The court in Batiste distinguished the purpose of Rule 9(b)'s pleading requirement – to protect defendants from baseless suits – from the purpose of the FCA's first-to-file rule – to bar similar actions that offer the government little new material information about fraudulent conduct.

Other courts, while not directly ruling on this precise issue, have also discussed the intersection of Rule 9(b) and the FCA's threshold defenses. The Tenth Circuit has acknowledged "being uneasy with the . . . suggestion that Rule 9(b)'s particularity requirement should be applied to the first-to-file bar." United States ex rel. Wickliffe v. EMC Corp., 473 Fed. App'x 849, 852 (10th Cir. 2012). And the Eighth Circuit recently held Rule 9(b)'s pleading requirement need not be satisfied in determining whether a relator is entitled to her share of the settlement proceeds in a qui tam action in which the government decides to intervene. United States ex rel. Roberts v. Accenture, LLP, et al., No. 11-2054, 2013 WL 764734, at *6-7. (8th Cir. Mar. 1, 2013). In Campbell v. Redding Med. Ctr., 421 F.3d 817, 825 (9th Cir. 2005), the Ninth Circuit held that, in public disclosure cases, later-filed complaints are only barred by an earlier-filed complaint that satisfies the requirements of the FCA's public disclosure rule. 421 F.3d at 425; see also 31 U.S.C. 3730(e)(4) (requiring dismissal of a claim if substantially the same allegations alleged were publicly disclosed, unless relator is an original source of an earlier-filed complaint that satisfies the requirements of the FCA's public disclosure rule).

District Court's Decision in Heineman-Guta

In Heineman-Guta, relator brought a complaint alleging Defendants Guidant Corporation and Boston Scientific Corporation (collectively, "BSC") had violated the FCA through a scheme of fraudulent kickbacks. However, a prior-filed complaint—the Bennett complaint—had already alleged a similar scheme against the same Defendants. United States ex rel. Bennett v. Boston Scientific Corp., et al., No. 08-cv-2733-CCP (D. Md., filed Oct. 16, 2008). The district court dismissed relator's complaint as barred by the first-to-file rule after determining that the Bennett complaint provided the essential facts of BSC's allegedly fraudulent kickback scheme. In his opinion, Judge Stearns endorsed the D.C. Circuit's approach in holding that the first-to-file rule barred relator's complaint, even if the Bennett complaint failed to satisfy Rule 9(b)'s pleading standard. United States ex rel. Heineman-Guta v. Guidant Corp., et al., 874 F. Supp. 2d 35, 39-41 (D. Mass. 2012). Soon thereafter, a second judge within the District of Massachusetts adopted the D.C. Circuit's approach as well. See United States ex rel. Banignan et al. v. Organon USA Inc., et al., 883 F. Supp. 2d 277, 287 n.17 (D. Mass. 2012) (Zobel, J.).

First Circuit Decision

At the outset of its opinion, the First Circuit explained that the first-to-file rule is intended to incentivize relators to come forward in an effort to alert the government to the essential facts of allegedly fraudulent conduct. To further this purpose, the First Circuit has held that the first-to-file rule bars a later-filed complaint if the subsequent complaint "states all the essential facts of a previously filed complaint or the same elements of a fraud described in an earlier suit." United States ex rel. Duxbury v. Ortho Biotech Prods., 579 F.3d 13, 32 (1st Cir. 2009) (internal citations omitted).

As such, the court rejected relator's argument that the appropriate standard to assess whether a first-filed complaint should be given preclusive effect is not the essential facts tests, but rather Rule 9(b)'s heightened pleading standard. The court reasoned that nothing in the statutory language of the FCA's first-to-file rule references Rule 9(b)'s particularity requirement. See 31 U.S.C. § 3730(b)(5). Characterizing the text as "plain and simple," the court observed that Congress has explicitly referenced the Federal Rules of Civil Procedure in other provisions of the FCA, and when Congress does not do so, as is the case here, the court will not incorporate extrinsic language into a provision. The court also noted that Rule 9(b)'s goal is to shield defendants from unsubstantiated lawsuits, not to alert the government to potentially fraudulent conduct.

At oral argument, relator urged the panel to adopt the Sixth Circuit's position, arguing that failing to impose a heightened pleading requirement would encourage relators to file vague and speculative complaints to prevent subsequent relators from filing complaints once armed with more-detailed information. In its decision, the court rejected this line of argument and explicitly disagreed with the Sixth Circuit in favor of the D.C. Circuit, reasoning that a first-filed complaint containing merely vague and speculative allegations would likely lack the essential facts necessary to place the government on notice of fraudulent conduct, and thus would fail to bar a subsequent, overlapping complaint.

Applying the essential facts test to the instant case, the court explained that there was no question that the first-filed complaint – the Bennett complaint – provided the essential facts of BSC's allegedly fraudulent kickback scheme. Like relator's complaint, the Bennett complaint centered on BSC's alleged use of kickbacks to induce hospitals and physicians to submit false claims to the government, specifically Medicare. As a result, the first-filed complaint had sufficiently placed the government on notice and therefore barred relator's later-filed complaint.

The First Circuit's decision in Heineman-Guta appropriately recognizes the distinct function served by the first-to-file bar. As the court properly observed, whereas Rule 9(b) looks to protect defendants facing accusations of fraud, the first-to-file bar prevents suits that do not aid the government in investigating false claims, thereby encouraging would-be relators to come forward with allegations of fraud promptly. Whereas the rules of pleading may require specific allegations as to the details of a fraudulent scheme, such details are not necessarily required to initiate a government investigation and therefore should not be required for the first-to-file rule to apply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.