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June 29, 2018

29 June 2018

U.S. Solicitor General Agrees That First-to File Violations Require Dismissal

The Solicitor General recently filed a brief in the United States Supreme Court stating that “the required remedy for a first-to-file violation is dismissal.”  U.S. Br. 10 (emphasis added).

The brief was filed in the context of the long-running case that produced the Court’s opinion a few years ago in Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015).  On remand, the petitioner, Benjamin Carter, maintained that the intervening dismissals of two earlier-filed cases “cured” any first-to-file defect with his case, such that dismissal and re-filing of Carter’s complaint was unnecessary.  The district court and the Fourth Circuit disagreed.  Carter then sought certiorari, and the Supreme Court invited the Solicitor General to weigh in.  (The government recommended against certiorari, and the Court denied the petition on June 25, 2018.)  (more…)

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