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The Insufficient Complaint – Consequences,” ABA 21st Annual National Institute on White Collar Crime 2007

When amending the False Claims Act(“FCA”) in 1986, Congress enacted several new provisions that created a “race to the courthouse” between different relators, as well as between relators and the government itself. These provisions “were designed to inspire whistle-blowers to come forward promptly with information concerning fraud so that the government can stop it and recover ill-gotten gains” as soon as possible. Without question, early filing of a qui tam suit, when done properly, has its advantages for both the relator and the government. Not only does the early filing of a sufficient complaint commence the suit for statute of limitations purposes, it also reduces the risk that the relator’s action will be precluded by one of the FCA’s jurisdictional bars-e.g., the “first-to-file” bar, the “pending government action” bar and the “public disclosure” bar. As highlighted by several recent cases, however, the filling of an insufficient complaint (not to be confused with a meritless complaint) can have deleterious consequences that can lead to, inter alia, first-filing relators being supplanted by second-filing relators and be the dismissal of otherwise legitimate claims as time-barred. The FAC was originally enacted in 1863, during the Civil War, to combat Union contractor fraud. The original Act imposed civil and criminal penalties on persons who submitted a false claim for payment to the government. The original Act also provided for federal jurisdiction over civil qui tam action.

Co-Authors: Brian C. Elmer, Andy Liu.

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