Conflicting Requirements of Notice: The Incorporation of Rule 9(b) into the False Claims Act's First-to-File Bar

Intended to prevent fraud against the government, the False Claims Act ("FCA") contains a qui tam provision allowing private individuals, known as relators, to bring suits on behalf of the government and receive a portion of the damages. At the heart of the qui tam provision lies the first-to-file bar, which provides that, once a first relator has filed a complaint, subsequent relators are prohibited from coming forward with complaints based on the facts underlying the first relator's pending action. A circuit split has recently emerged regarding the incorporation of Federal Rule of Civil Procedure 9(b)'s heightened pleading standard into the FCA's first-to-file rule. Neither the circuit court decisions nor the relevant scholarship on this issue, however, has provided a comprehensive explanation as to why the government's notice requirements should differ-if indeed they should differ at all-from defendants' notice requirements for purposes of the first-to-file bar. This Note aims to fill that void and argues that, unlike garden-variety civil defendants in an adversarial context, the government maintains a partnership with the relator and has sufficient investigatory tools beyond the four corners of the complaint to assess adequately the merits of the relator's allegations. Thus, the government does not require the heightened notice of Rule 9(b) at the first-to-file stage, and courts should ultimately adopt the approach employed by the First and D.C. Circuits in affording preclusive effect to first-filed FCA complaints, even if they are deficient under Rule 9(b).IntroductionThe False Claims Act ("FCA")'s origins trace back to the Civil War in 1863.1 With the rebel forces swiftly moving toward Washington, D.C., Union armies faced dwindling supplies of muskets, horses, and mules due to government contractor profiteering.2 Recognizing the lack of government resources and the potential for private citizens to combat defenseprocurement fraud, President Lincoln signed the FCA into law.3 The FCA was intended to encourage private individuals to alert the government to fraud.4 To effectuate this goal, the Act contains a qui tam provision, which allows private citizens-also known as relators-to bring suits on behalf of the government and receive a portion of the damages.5Throughout the FCA's history, Congress has sought a delicate balance between two competing policy objectives: encouraging whistleblowers to come forward and alert the government to fraudulent activity and simultaneously discouraging opportunistic plaintiffs from initiating parasitic lawsuits. 6 These dual policy goals have come to the forefront in the circuit split regarding the incorporation of Federal Rule of Civil Procedure 9(b) ("Rule 9(b)")'s heightened pleading standard7 into the FCA's first-to-file provision, which prohibits anyone other than the government from intervening or bringing "a related action based on the facts underlying the pending action." 8 In opposition to the Sixth Circuit,9 the First Circuit recently joined the D.C. Circuit in holding that an earlier-filed FCA complaint need not satisfy Rule 9(b)'s particularity requirement to provide the government with sufficient notice of the alleged fraud and to preclude a later-filed complaint.10Commentators in favor of eliminating Rule 9(b) from the first-to-file bar argue that this approach better comports with the FCA's twin policy goals of encouraging parties promptly to report fraud and deterring parasitic relators,* 11 and further that it provides a clear, exception-free application of 31 U.S.C. § 3730(b)(5) for courts to follow.12 By contrast, those commentators in favor of grafting Rule 9(b) onto the first-to-file bar claim that including Rule 9(b)'s particularity requirement will better serve to "minimize social loss from false claims" and more effectively use relators as government resources.13 These broad policy arguments, however, fail adequately to address Rule 9(b)'s practical utility in providing notice to the government at the first-to-file stage. …