8. Whistleblower/False Claims Act – First to File Bar

When an FCA qui tam case is filed, it preempts all other qui tam cases on that same claim.

When an FCA case is filed, no person other than the government may intervene or bring a related case based on the facts underlying the pending case. In other words, the first case filed bars or voids all subsequently filed cases raising that same false claim. So, when a second case is filed, the question arises as to whether the new case is based on the same or “related” conduct alleged in the first. Also, the question can arise as to whether the first case is still pending or whether it has been dismissed.

Because FCA cases are filed “under seal,” it impossible to know whether or not another case on the same subject has already been filed. This means that no matter how good your case is you are always at risk that someone has filed before you, making your case worthless. And, because of the seal, you may not learn the fact that your case was not the first one until many years later when the other case is unsealed and subsequently your case is dismissed.