First Circuit Affirms Dismissal Of FCA Complaint Based On First-to-File Bar

The First Circuit recently affirmed the dismissal of United States ex rel. Wilson v. Bristol-Myers Squibb, Inc. under the False Claims Act's ("FCA") "first-to-file" provision, which prohibits any person "other than the Government" from pursuing a "related action based on the facts underlying the pending action." 31 U.S.C. §3730(b)(5). The court applied the now familiar "essential facts" test, articulated in United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., in rejecting relator's attempt to narrow the scope of this important jurisdictional bar.

Background

Relator Michael Wilson, a former Bristol-Myers Squibb ("BMS") sales representative, originally filed suit in September 2006 and subsequently amended his complaint. As part of a 2007 settlement, relator voluntarily dismissed his FCA claims against BMS except for claims relating to off-label promotion, retaliation, and wrongful termination. Two years later, relator filed a Second Amended Complaint, expanding on the remaining claims against BMS and adding Sanofi-Aventis as a defendant. In 2010, relator moved for permission to amend his complaint once again, but this motion was denied and the defendants moved to dismiss.

In granting the motion to dismiss...