Tenth Circuit Hints that Rule 9(b) May Not Apply to First-to-File Rule

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In another post, we wrote about the Tenth Circuit’s decision in United States ex rel. Wickliffe v. EMC Corporation (April 4, 2012), affirming the district court’s dismissal of a False Claims Act complaint on the government’s motion.

The Tenth Circuit, by ruling that dismissal was proper under 31 U.S.C. § 3730(c)(2)(A) for motions by the government, avoided the “complicated first-impression issue of the applicability of Rule 9(b) to [the first-to-file rule under] § 3730(b)(5).” The issue is whether a complaint that fails the particularity requirements of Federal Rule of Civil Procedure 9(b) can nonetheless trigger the first-to-file bar under the False Claims Act. The court noted in Wickliffe that the other circuit courts were split on this issue, which can affect the viability of many potential False Claims Act lawsuits.

While the court avoided the issue in Wickliffe, the court may have tipped its hand, or at least that of some of its members, when it wrote: “We admit to being uneasy with the parties’ suggestion that Rule 9(b)’s particularity requirement should be applied to the first-to-file bar.” Perhaps the court was indicating that if given the opportunity, it is inclined to hold that Rule 9(b) does not apply and that complaints that fail the Rule 9(b) test can nevertheless bar a subsequent complaint raising the same issues but with much more specificity.