FCA’s “First to File” Bar Retains Some Teeth
The Supreme Court recently declined to review the Tenth Circuit’s dismissal of a relator’s claim based on a novel application of the first to file bar. The declination let stand a ruling that: (1) amending a complaint can constitute “intervention” for purposes of the first to file bar; and (2) under most circumstances, “John Doe” or other anonymous plaintiffs cannot be considered “original parties” for purposes of the first to file bar, and that their filing of an amended complaint mandated their treatment as “new” relators who could not file an action based on the same theory as the true “original” relator. This application of the first to file bar to a novel set of circumstances demonstrates the potency of that theory in addressing copycat whistleblower claims brought against health care providers and others under the FCA.
