Relator Said Its Complaint Alleged New Facts So It Wasn’t Barred by First-to-File Rule. The Court Saw Things Differently.

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A qui tam action alleged the same fraud that had been raised in a previous qui tam suit. The court dismissed the later action under the first-to-file rule. While the later action raised some new facts, it still arose out of the same essential facts as the previous action.

United States ex rel. Michael Mullen v. Cardinal Health, Inc., D. Mass. No 19-12488-NMG
  • Alleged Fraud – The relator filed a qui tam action, alleging his former employer had submitted kickback-tainted claims to federal health care programs. The defendants moved to dismiss for failure to state a claim.
  • First-to-File – The FCA’s first-to-file rule prevents a person other than the government from bringing a claim based on the same facts as another pending claim. Here, another relator had filed qui tam action against the same defendants alleging the same fraud.
  • Essential Facts – A later filed claim is barred under the first-to-file rule if it alleges the essential facts as the previous claim. Here, the relator argued his complaint alleged new facts—specifically, the identity of physicians involved in the underlying scheme. The court, however, found the relator’s new allegation didn’t add much. The claim still arose out of the same essential facts as a previously filed claim.

—Case summary by Craig LaChance, Senior Editor