Trending Towards Leniency: What Millenium Laboratories & In re Plavix Marketing Teach About the Future of the False Claims Act’s First-to-File Rule
Zachary Sizemore, Cornell Law School, J.D. 2021.
Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.