When Congress enacted the first-to-file bar, within the False Claims Act, 31 U.S.C. 3730(b)(5), it provided for jurisdiction only to the first qui tam action to raise specific allegations. In doing so, Congress sought to preclude a flood of duplicitous lawsuits. Unfortunately, some courts have misread the statutory text of the first-to-file bar, thus erroneously precluding actionable qui tam suits.

The most common mistake involves courts overlooking the “pending” language found in 31 U.S.C. 3730 (b)(5). The False Claims Act only bars qui tam actions when a separate, related qui tam case, based on the same facts, is still “pending.” By removing “pending” from the first-to-file bar, courts have permitted previously dismissed, barebones allegations to derailed later-file meritorious suits.

Recently, however,in United States ex rel. Sonnier v. Allstate Ins. Co., Civ. No. 09-1038-JJB (M.D La. Jan. 10, 2012), a Louisiana district court correctly read the Act, when it determined that earlier-filed qui tam suits do not trigger the first-to-bar unless the earlier actions were still pending when the later qui tam suit was filed. Other courts would be well-served to review this decision before instinctually triggering the first-to-file bar.

For more information about qui tam law and healthcare fraud, contact Nolan & Auerbach, P.A.