Litigation Alert: First Circuit Explains “Essential Facts” Test Under the False Claims Act’s First-to-File Bar

Summary: Relators bringing qui tam suits in the First Circuit alleging the same “essential facts” as earlier-filed qui tam complaints are likely to have a difficult time surmounting the federal False Claims Act’s (FCA) so called first-to-file jurisdictional bar (31 U.S.C. § 3730(b)(5)), which blocks qui tam suits filed while similar ones are pending. In U.S. ex rel. Ven-A-Care of the Florida Keys, Inc. v. Baxter Healthcare Corp., No. 13-1732, 2014 WL 6737102 (1st Cir. Dec. 1, 2014), the First Circuit affirmed the dismissal of a later-filed qui tam complaint because an earlier-filed complaint had already disclosed the “essential facts” of the alleged fraud, even though the later suit supplied “far more detail.” In its analysis, the First Circuit observed that it had not “previously described with precision” how specific a complaint must be to provide the “essential elements” of the alleged fraud, and provided guidance on this issue.