Sidley Lawyers Publish Article On Second Circuit Decision Require Dismissal For First-to-File Violations

Sidley lawyers Kristin Graham Koehler and Josh Fougere have authored an article as a part of the Washington Legal Foundation’s Counsel’s Advisories series, entitled “Appeals Court Holds That First-To-File Violations Require Dismissal Of False Claims Act Suits.”  The article examines the Second Circuit’s recent ruling in United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163 (2d Cir. 2018).  The Second Circuit joined a growing majority view in holding that a violation of the False Claims Act’s “first-to-file bar cannot be remedied by amending or supplementing the complaint” but, instead, requires dismissal.  In reaching that conclusion, the court of appeals made two important points.  First, the Second Circuit rejected the relator’s contention that the earlier-filed suits did not trigger the first-to-file bar because they were deficiently pled and were not as detailed as the current complaint.  Second, the Second Circuit held that, if a “related action” is “pending” when the relator initially files the complaint, the relator cannot “cure” the violation through amendment after the earlier action is dismissed.  The only remedy is dismissal.  This emerging consensus has important consequences for statutes of limitations and for how parallel courts handle multiple qui tam suits making similar allegations.

The article is available for download on the Washington Legal Foundation’s website: