In recent years, court has increasingly read the False Claims Act’s First-to-File Bar quite broadly, precluding later-filed qui tam actions that, at times, seem quite different from the earlier-filed qui tam actions. The most recent example comes out of the First Circuit Court of Appeals, in United States ex rel. Wilson v. Bristol-Myers Squibb, No. 13-1948 (1st Cir. April 30, 2014).
In Wilson, a former Bristol-Myers Squibb (BMS) sales representative filed a qui tam action in October 2006, alleging that his former employer had off-label marketed its drugs for specific off-label uses. The government intervened and settled a portion of this case in August 2007 for over $317 million. Mr. Wilson decided to go forward with the non-intervened claims.
However, an earlier-filed qui tam whistleblower lawsuit included off-label marketing allegations involving the same drug; it alleged that these promotions cause providers to use the drugs for different off-label uses than the ones identified in Mr. Wilson’s complaint.
After the District of Massachusetts cited the First-to-File bar in dismissing Mr. Wilson’s qui tam complaint, he appealed to the First Circuit. Mr. Wilson argued that the First-to-File Bar did not apply, for his action was not substantially similar to the earlier-filed qui tam suit.
In affirming the lower court’s decision, the First Circuit determined that the “essential facts” were present in the earlier-filed suit, so the government was put on notice, triggering the FCA First-to-File bar. While recognizing that Mr. Wilson supplied the government with different information, the Court quoted its earlier decision in stressing, “the first-to-file bar ‘still bar[s] a later claim’ even if that claim incorporates somewhat different details.”
Reduced to its core, the Court emphasized that the First-to-File bar will apply when the two complaints involve the same essential facts, such as: “the same defendants, the same drugs, the assertion of nationwide schemes, and the allegations of specific mechanisms of promotion common to both…”
More information for whistleblowers is located at the Nolan Auerbach & White website.