Third Circuit Addresses the Scope of the FCA’s First-to-File Bar

Third Circuit Addresses the Scope of the FCA’s First-to-File Bar

November 9, 2020, Covington Advisory

Under the False Claims Act’s (“FCA”) first-to-file bar, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” But can a relator amend her complaint to add, remove, or substitute relators without violating the first-to-file bar? Recently, the Third Circuit in In re Plavix answered “yes,” and concluded that the first-to-file bar does not preclude adding another relator through joinder, substitution, or an amendment. Instead, the first-to-file bar applies when a private party attempts to intervene in an FCA case under Federal Rule of Civil Procedure 24 or when a private party attempts to bring a new action on the same facts underlying the pending action.