The D.C. Circuit reversed the district court's dismissal of a serial relator's qui tam lawsuit under the FCA's first-to-file bar in U.S. ex rel. Heath v. AT&T, Inc., finding that the relator's two qui tam lawsuits targeted factually distinct types of frauds. The D.C. Circuit further determined that the relator's qui tam lawsuit satisfied the pleading requirements of Rule 9(b).
The FCA's first-to-file bar provides that once a qui tam action has been filed, "no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." As an initial matter, the D.C. Circuit determined that the first-to-file rule was not jurisdictional in nature; but rather, implicated only whether a qui tam plaintiff properly stated a claim. The D.C. Circuit then determined that the relator's second qui tam lawsuit, which alleged that AT&T and 19 of its subsidiaries deprived schools and libraries of the lowest corresponding price for phone and internet services, was sufficiently different from the relator's first qui tam lawsuit in terms of its scope and how the fraud scheme allegedly was carried out to avoid dismissal under the first-to-file rule.
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