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 the FCA counts, the District Court focused on whether Wilson's complaint alleged the same "essential facts" as an FCA complaint that had been filed before Wilson's original complaint by another relator in the District Court for the District of Columbia. After comparing the allegations, the court held that Wilson's FCA claims were barred.1 Relator appealed.

First Circuit's Holding

Like the District Court, the First Circuit applied the "essential facts" or "material elements" test in affirming the first-to-file dismissal of Wilson's complaint.2 Under this test, a later-filed claim is barred if it "states all the essential facts of a previously-filed claim or the same elements of a fraud described in an earlier suit." The complaints need not be identical for the first-to-file bar to apply; once the government has been advised of the essential facts of a fraudulent scheme by the earlier complaint, it has enough information to discover related frauds.

In holding that the D.C. complaint put the government on notice of the scheme alleged in Wilson's complaint, the court noted that the earlier-filed complaint targeted the same defendants and drugs, asserted a nationwide scheme, and alleged similar mechanisms leading to common patterns of...