In the current term, the United States Supreme Court granted cert in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, to assess the limits of the False Claims Act’s First-to-File Bar. The United States Solicitor General and Taxpayers Against Fraud Education Fund (TAFEF) filed amicus curiae briefs encouraging the Court only apply this jurisdictional bar when the first-filed qui tam lawsuit is still pending when the later-filed actions are filed. (Nolan Auerbach & White partner Jeb White is Counsel of Record for TAFEF.)

The False Claims Act’s First-to-File Bar prohibits qui tam Relators from bringing a “related” action “based on the facts underlying” a previously-filed qui tam action. 31 U.S.C. § 3730(b)(5). According to most courts, this provision precludes the courts from having jurisdiction over later-filed qui tam actions when the first qui tam lawsuit provides the government sufficient notice to begin an investigation of the alleged fraudulent scheme that gives rise to later-filed qui tam lawsuits.

The Supreme Court will be confronting the issue of whether the first-filed qui tam action must still be “pending” to bar later-filed qui tam actions, under the First-to-File Bar. This issue should be resolved in the favor of the Relator and the federal government, for Congress specifically penned the word “pending” into the First-to-File Bar provision.

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