What is the “First to File” Rule in Qui Tam Whistleblower Cases?

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False Claims Act

Under the False Claims Act, a whistleblower may only collect an award if a qui tam lawsuit is properly filed, the claim is settled or won, and the whistleblower is the first to file a qui tam claim. This last requirement – the “first to file” clause – bars subsequent fraud allegations based upon the same essential facts outlined in the prior qui tam claim.

In practice, the first to file rule means that when two whistleblowers bring qui tam claims based on the same fraudulent behavior, only the first whistleblower’s lawsuit will survive. The other whistleblower is left with nothing. This is part of the reason why it is absolutely essential to consult with an experienced whistleblower attorney when planning a potential qui tam claim.

The first to file rule encourages those with knowledge of fraud against the government to report it promptly.

What the whistleblower law says

31 U.S.C. § 3730(b)(5) states:

When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.

This section of the United States Code means that only the government may intervene in a qui tam claim. This prevents subsequent whistleblowers from trying to capitalize on already-filed qui tam claims. Accordingly, in order to file a valid quit tam claim, a whistleblower must be the first to file the claim. After the first claim is filed, subsequent whistleblowers will not be entitled to file claims based on the same set of underlying facts.

Because of this law, it is important to retain an experienced qui tam attorney early in the process. Preparing to file, planning your claim, and formulating an effective, sophisticated litigation strategy can be a time-intensive process. In order to meet the first-to-file qui tam requirement, we recommend contacting us as soon as possible in order to preserve your rights.

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