Naming Additional Defendants and Identifying Their Fraudulent Conduct Defeats Operation of First-to-File Bar
On March 28, the U.S. District Court for the District of South Carolina advanced a plaintiff-friendly interpretation of the False Claims Act’s (“FCA’s”) first-to-file rule. It recognized that naming new defendants who are related to defendants named in previously filed complaint and complicit in the alleged fraud renders the subsequent complaint sufficiently different to pass muster under the rule.
The first-to-file rule, 31 U.S.C. § 3730(b)(5), provides that “no other person than the Government may intervene or bring a related action based on the facts underlying the pending action.” In many U.S. Circuits, including the Fourth, where the District of South Carolina sits, courts apply the “same material elements” test, meaning that a relator is not “first to file” if his complaint describes the same material elements of a fraud documented in a previously filed complaint.
United States ex rel. Lutz v. Berkeley HeartLab, Inc., et al., No. 9:14-cv-230 (D.S.C.), is an FCA case in which three separate qui tam actions were consolidated for government intervention. The three complaints – one filed by relators Scarlett Lutz and Kayla Webster, one filed by relator Michael Mayes, and one filed by relator Chris Reidel – allege a nationwide scheme in which physicians were offered and paid kickbacks to order often-medically-unnecessary tests from diagnostic laboratories (Berkeley HeartLab, Health Diagnostic Laboratory, Inc. [“HDL”], and Singulex, Inc.), through a marketing agent (BlueWave Healthcare Consultants), in violation of the FCA. Government healthcare programs then reimbursed the laboratories for those impermissible payments. Mayes filed his complaint first, Reidel’s complaint followed, and Lutz and Webster filed their complaint thereafter. Unlike Mayes and Reidel, Lutz and Webster named the individuals who concocted, directed, and implemented the scheme – as opposed to only the corporate entities they represent – as defendants.
Those individual defendants – HDL’s Latonya Mallory and BlueWave’s Floyd Calhoun Dent and Robert Bradford Johnson – moved to dismiss the Lutz-Webster action, arguing that the first-to-file rule divested the court of subject matter jurisdiction because the Lutz-Webster complaint alleged the same general fraudulent scheme as that alleged in the Mayes complaint and the Reidel complaint. The court rejected the argument, holding that Lutz and Webster were first-filed as to the individual defendants. Put differently, “a later-filed action is not based on the facts of a pending action when it identifies a new defendant who is not a subsidiary of an already-named defendant.” Because Lutz and Webster were the only relators to name the individual defendants and allege that they personally committed fraudulent conduct, their complaint “contains different material elements of fraud than the pending action[s].”
Notably for future relators, the court’s analysis suggests that the addition of any defendant – except for a subsidiary of a previously named defendant – will defeat the first-to-file rule, as long as their involvement in fraud can be documented with particularity. Each relator should thus draft her complaint as broadly as the facts allow, in order to support the identification and naming of all parties involved in the fraud alleged. Doing so will increase the odds that the relator’s complaint names and inculpates different defendants – and thus, under the Lutz court’s analysis, alleges different material elements – than any potentially related and previously filed complaint.