I. Introduction

Government-funded programs allow companies to receive reimbursement from the government when they provide certain services. For example, healthcare providers with a Medicare contract are reimbursed when they administer certain procedures or medications.[1] Similarly, telecommunications companies that have contracts with the Federal Communications Commission’s Universal Service Program are reimbursed when they provide discounted services to eligible schools and libraries.[2] By contracting with businesses, the government can easily provide services that benefit the public. However, some of these for-profit businesses might begin to focus more on their profits and less on the community. Healthcare providers might start administering unnecessary medical procedures to patients in order to receive increased Medicare reimbursements.[3] Telecommunications companies might overcharge disadvantaged school districts for services while receiving government reimbursement for supposedly providing those schools with discounted rates.[4] The unfortunate reality is that the government estimates that it loses hundreds of billions of dollars to false claims like these each year.[5]

To combat this problem, Congress passed the False Claims Act (FCA). The FCA is a federal law that imposes civil liability on parties that defraud the U.S. Government to recoup fraudulently obtained funds.[6] Despite being “the Government’s primary litigative tool for combating fraud,”[7] legal scholars and courts alike disagree on how to interpret the FCA. Particularly 31 U.S.C. § 3730(b)(5), commonly known as the FCA’s “first-to-file” provision, has created a host of interpretative challenges.[8] The first-to-file provision bars FCA qui tam plaintiffs from “bring[ing] a related action based on the facts underlying [a] pending action.”[9] While the Supreme Court has not yet adopted a test to determine whether two claims are related under the first-to-file provision, every circuit court that has addressed the issue agrees that the essential facts test is the appropriate standard to use.[10] However, circuit courts disagree on how to apply the essential facts test, with some courts applying the test broadly while others apply the test more narrowly.[11]

This Note examines how both the broad and narrow applications of the essential facts test affect the balance between the competing goals of the first-to-file provision. Part II provides background on the first-to-file provision and the development of the essential facts test. Part III then examines the inconsistent applications of the essential facts test by the circuit courts, with some circuits applying the test broadly and others applying the test more narrowly. Part IV explores the importance of FCA qui tam litigation. Finally, Part V argues that a broad application of the essential facts test achieves the best balance between the competing goals of the provision.

II. Background

A. The Enactment of the First-to-File Provision.

The FCA was enacted in 1863 to combat the excessive fraud committed by defense contractors against the government during the Civil War,[12] and it has been the subject of legal controversy ever since.[13] It remained generally unchanged until the 1986 False Claims Reform Act,[14] when Congress updated and modernized the FCA to improve the government’s ability to recover losses resulting from fraud.[15] Congress sought to make the FCA more effective because the government was losing anywhere “from hundreds of millions of dollars to more than $50 billion per year” to fraud in government programs.[16] As a result, people began to lose faith in the government’s management of federal programs.[17]

Congress recognized that whistleblowers with firsthand knowledge of a fraudulent scheme are invaluable to FCA litigation.[18] Therefore, the solution to this growing fraud problem was to strengthen the FCA’s qui tam provisions to encourage individuals with knowledge of fraudulent activity against the government to come forward.[19] To encourage private enforcement of the FCA, Congress increased protections for whistleblowers, also known as relators.[20] Additionally, Congress increased the portion of the award a relator could receive from a successful claim[21] and allowed relators to recover attorney’s fees.[22]

Although it is important for the government to promptly and efficiently investigate alleged fraudulent schemes, the Department of Justice expressed concerns that expanding qui tam provisions might lead to a greater number of frivolous or vexatious lawsuits.[23] Congress appears to have taken steps to address the Department of Justice’s concerns when it included § 3730(b)(5), also known as the first-to-file provision, in the 1986 FCA Amendments. The first-to-file provision states that private citizens are prohibited from bringing qui tam actions that are based on the facts of a pending FCA claim.[24] Congress included the provision to clarify that the FCA was “not meant to produce class actions or multiple separate suits based on identical facts and circumstances.”[25]

Based on the legislative history described above, circuit courts agree that the FCA’s qui tam and first-to-file provisions have competing goals: (1) encourage whistleblowers to promptly notify the government of potential fraud and (2) prevent repetitive, opportunistic lawsuits based on previously disclosed fraud.[26] However, Congress did not indicate how courts were supposed to determine whether two FCA claims are related for purposes of the first-to-file provision.[27] This led to courts developing the essential facts test.[28]

B. The Development of the Essential Facts Test

When circuit courts first began to discuss and apply the first-to-file provision, practitioners attempted to persuade courts to adopt an identical facts test. [29] The identical facts test would only bar later-filed claims that allege facts identical to those in the first-filed complaint.[30] The justification for this test comes from the first-to-file provision’s legislative history, which states that the provision “is not meant to produce . . . multiple separate suits based on identical facts and circumstances.”[31] However, the circuit courts have dismissed an identical facts test in favor of the essential facts test by relying on the plain language and the purpose of the statute.[32] For example, in the first federal appellate case to adopt the essential facts test, United States ex rel. LaCorte v. SmithKline Beecham Clinical Laboratories, Inc., the Third Circuit determined that the essential facts test is the appropriate standard to apply because the plain language of § 3730(b)(5) “speaks of a ‘related action,’ not an identical one.”[33] Additionally, the court found that an identical facts test would defeat the purpose of the FCA by preventing the government from uncovering fraud.[34] Currently, all eleven of the circuit courts to address the issue of whether two claims are related under the first-to-file provision have adopted the essential facts test.[35]

Under the essential facts test, two actions are related under the first-to-file provision if the later-filed complaint “states all the essential facts of a previously-filed claim or the same elements of fraud as described in an earlier suit.”[36] The circuit courts agree that under the essential facts test, the first-to-file provision can bar a later claim even when the claim includes different details.[37] When analyzing the similarities of qui tam claims under the essential facts test, courts compare the complaints side by side to determine whether similarities exist such that the facts alleged in the first complaint would have put the government on notice of the fraudulent scheme alleged in the later-filed complaint.[38] Despite the circuit courts’ agreement on many aspects of the essential facts test, the circuits apply the test inconsistently.[39]

III. Judicial Inconsistency in the Application of the Essential Facts Test

When circuit courts apply the essential facts test, one panel might find that the government should have been put on notice by a certain set of facts, while a different panel may come to the opposite conclusion when presented with the same set of facts. This illustrates the judicial inconsistency that can arise in the application of the essential facts test. These varied applications can be split into two categories: broad or narrow applications.[40] Section III.A illustrates how the essential facts test has been broadly applied by analyzing recent decisions in the Second and Fourth Circuits. Section III.B then discusses how the test has been narrowly applied by analyzing recent decisions by the D.C. and First Circuit Courts of Appeals.

A. Broad Applications of the Essential Facts Test

1. Second Circuit

In United States ex rel. Wood v. Allergan, Inc., the Second Circuit’s first and only application of the essential facts test, the court held that two FCA qui tam complaints were related under the first-to-file provision because they alleged similar fraudulent schemes, even though the later-filed complaint included additional details.[41] In 2008, Holly Lampkin filed a FCA qui tam complaint (Lampkin Complaint) alleging that Allergan, a pharmaceutical company, sent physicians free surgical kits to induce them into prescribing Allergan products.[42] In 2010, while the Lampkin Complaint was still pending, Todd Wood filed a FCA qui tam complaint (Wood Complaint) against Allergan.[43] Wood alleged that from 2003 through 2011, Allergan gave free products to physicians who promised to prescribe or increase their number of prescriptions for Allergan products, which resulted in health insurance providers filing false claims with the government.[44]

The Second Circuit compared the Lampkin and Wood Complaints to determine whether they shared the same essential facts, stating that if the government “would be equipped to investigate” the second complaint based off the facts alleged in the first-filed complaint, “then the two cases are related within the meaning of Section 3730(b)(5).”[45] Ultimately, the Second Circuit held that the complaints relied on the same essential facts, even though the Wood Complaint alleged additional details, because they both alleged a similar fraudulent scheme where Allergan induced medical providers to increase their use of Allergan products by providing them with free cataract surgery kits.[46]

2. Fourth Circuit

In the Fourth Circuit’s most recent application of the essential facts test, the court broadly applied the test, finding that two FCA qui tam complaints were related under the first-to-file provision, even when one complaint alleged additional methods of fraud.[47] In 2009, Christine Ribik, the first relator, filed a qui tam complaint (Ribik Complaint) against Manor Care, a health services provider, in United States ex rel. Carson v. Manor Care, Inc.[48] Ribik alleged that Manor Care provided patients with unnecessary physical therapy so that it could overbill Medicare.[49] Ribik alleged that Manor Care achieved this by encouraging staff to spend unnecessary time with patients in order to increase the billing charge, refusing to discharge patients from its facility so that it could continue to administer unnecessary services, and billing for therapy services that were never provided.[50] In 2011, a second relator named Patrick Carson filed a qui tam complaint (Carson Complaint) against Manor Care.[51] Carson alleged that Manor Care overbilled for therapy services, billed for services that were never provided, billed “non-skilled activities as skilled therapy,” billed for unnecessary therapy, increased billing by spending unnecessary time with patients, and “postponed the discharge of patients for days and sometimes weeks longer than medically appropriate.”[52] Additionally, Carson alleged that Manor Care defrauded the government by “consistently administering modalities like electric stimulation, diathermy, and ultra sound to inappropriate patients.”[53] Carson argued that his complaint indicated a different fraudulent scheme from the Ribik Complaint because he alleged several additional mechanisms by which Manor Care improperly increased its billing to the government.[54]

The Fourth Circuit compared the Ribik and Carson Complaints to determine whether they were based on the same essential facts and therefore related under the first-to-file provision.[55] The court recognized that the Carson Complaint alleged additional details and additional methods of fraud that were not included in the Ribik Complaint.[56] For example, the Carson Complaint specifically mentioned different therapy modalities such as ultrasounds and electric stimulation, whereas the Ribik Complaint only generally mentioned the administration of unnecessary therapy.[57] Additionally, the Carson Complaint was based on fraudulent conduct that took place in Pennsylvania, whereas the Ribik Complaint was based on fraudulent conduct that took place in Virginia.[58] Despite the differences in the details of the complaints, the court found that the Ribik and Carson Complaints were “materially similar” under the essential facts test because they both generally alleged that Manor Care implemented improper billing practices in order to fraudulently increase their billing of government-funded health programs.[59]

B. Narrow Applications of the Essential Facts Test

1. D.C. Circuit

In the D.C. Circuit’s most recent application of the essential facts test, the court narrowly applied the test and found that two FCA qui tam complaints were not related under the first-to-file provision, even when the complaints contained significant similarities.[60] In United States ex rel. Heath v. AT&T, Inc., the D.C. Circuit compared two FCA qui tam complaints side by side to determine whether they shared the same essential facts.[61] In 2008, Todd Heath, a telecommunications auditor, filed the first complaint (Wisconsin Bell Complaint) against Wisconsin Bell, Inc., a subsidiary of AT&T.[62] Heath alleged that Wisconsin Bell overbilled schools and libraries eligible for E-Rate pricing for telecommunications services while offering favorable telecommunications pricing to other agencies.[63] While the Wisconsin Bell Complaint was still pending, Heath filed another FCA qui tam complaint (AT&T Complaint) in 2011, this time against AT&T, Inc. and nineteen of its subsidiaries.[64] Heath alleged that through its subsidiaries, AT&T carried out a “corporate-wide scheme” to submit false claims to the government “by depriving schools and libraries” of favorable telecommunications prices.[65] Additionally, the AT&T Complaint alleged that “AT&T knowingly concealed those violations to avoid having to reimburse the [government].”[66]

The D.C. Circuit compared the complaints to determine whether “the government already would be equipped to investigate” the AT&T Complaint, based on the Wisconsin Bell Complaint.[67] Despite both complaints naming subsidiaries of the same company and dealing with the same type of fraud (overcharging schools that were eligible for E-Rate pricing), the D.C. Circuit held that the claims did not allege the same essential facts because the Wisconsin Bell Complaint only put the government on notice of “a limited scheme by Wisconsin Bell to defraud the E–Rate program within Wisconsin” through affirmative misrepresentations.[68] By contrast, the AT&T Complaint alleged a “different and more far-reaching scheme to defraud the federal government through service contracts entered into across the Nation, and then to cover up that fraud.”[69] Consequently, the court found that the government could not have discovered the fraud alleged in the AT&T Complaint based on the Wisconsin Bell Complaint and the complaints were not related under the first-to-file provision.[70]

2. First Circuit

In the First Circuit’s most recent application of the essential facts test, it narrowly applied the test and found that two complaints that share significant similarities do not allege the same essential facts.[71] In United States v. Millennium Laboratories, Inc., the court determined two complaints were unrelated under the first-to-file provision, even though both complaints alleged that the same defendant ordered excessive confirmatory drug testing in order to receive increased revenue.[72] In that case, Robert Cunningham filed the first complaint in 2011,[73] alleging that Millennium Laboratories implemented a “point-of-care model” that led to excessive confirmatory drug testing, which boosted the defendants’ revenue at the government’s expense.[74] Mark McGuire filed the second complaint in 2012, alleging that Millennium Laboratories “engaged in a scheme that resulted in unnecessary confirmatory tests being performed and billed to the government after the point-of-care tests.”[75] Specifically, McGuire’s complaint alleged that Millennium Laboratories had a corporate policy where it would send physicians free test kits.[76] The test kits persuaded physicians to automatically conduct confirmatory drug testing on every patient’s sample, regardless of whether it was needed.[77] The United States chose to intervene in McGuire’s action and reached a settlement with Millennium Laboratories that awarded 15% of the $227 million settlement to the relator.[78] However, the settlement did not resolve the identity of the relator, and Cunningham and McGuire both filed claims arguing that they were the first to file.[79]

To determine which relator was the first to file, the First Circuit compared Cunningham and McGuire’s complaints side by side to determine whether “Cunningham’s amended complaint ‘contained all the essential facts’ of the fraud McGuire alleged.”[80] Although both Cunningham and McGuire both alleged that Millennium Laboratories defrauded the government by conducting unnecessary confirmatory drug testing, the First Circuit said that argument was “too general.”[81] Rather, the “actual mechanism” of the fraud is the essential fact the court must consider in its analysis.[82] Because Cunningham’s complaint alleged that the fraud resulted from Millennium Laboratories ordering multiple unnecessary tests for each initial test kit, and McGuire’s complaint alleged that the fraud resulted from Millennium Laboratories providing free test kits to physicians to persuade them to automatically perform confirmatory testing, regardless of whether the tests were necessary or not, the First Circuit held that the complaints “do not allege similar frauds, but allege different frauds with different mechanisms.”[83] Therefore, the court concluded that the complaints did not share all the same essential facts.[84] Furthermore, the court found that when the Government intervened in the qui tam claims against Millennium Laboratories, it pursued the fraud alleged in McGuire’s complaint, not Cunningham’s complaint.[85] Consequently, the court determined that McGuire was the first-to-file relator.[86]

IV. The Importance of FCA Qui Tam Actions

One of the most unique, and arguably most important, aspects of the FCA is that it allows private citizens to sue companies on behalf of the U.S. Government in qui tam actions.[87] Only one other federal statute in the United States allows for qui tam actions,[88] and the constitutionality of qui tam litigation has often been debated.[89] While Congress repealed the qui tam provisions in other federal statutes,[90] it strengthened those in the False Claims Act.[91] However, this was not always the case. Congress almost barred all FCA qui tam actions in 1943, but it ultimately decided to considerably restrict the ability of FCA plaintiffs to bring them.[92] As a result, the efficacy of the FCA was significantly reduced, and relators only brought approximately six actions each year.[93] Comparatively, relators have filed 13,957 qui tam actions since Congress enacted the 1986 Amendments that expanded the ability of relators to bring qui tam actions.[94] The U.S. Government has only filed 5,570 non qui tam FCA actions in that same time.[95] The total amount of money that the government recouped from non qui tam actions since the 1986 Amendments took effect is a little less than $18 billion, while the government has recouped approximately $46.5 billion from qui tam actions.[96] Put simply, relators file approximately 2.5 times more FCA claims than the government and contribute approximately 70% of the money recouped from FCA judgments.[97] These numbers suggest that relators and the qui tam process are essential to combating fraud and recouping monetary losses.

Relators are clearly more effective than the government at identifying and bringing actions for false claims, presumably because they have firsthand knowledge of fraudulent schemes.[98] But how effective are qui tam actions overall? Although it is impossible to know exactly how much money the government loses to fraudulent claims, the Department of Justice has estimated that it loses anywhere from “1 to 10 percent of the entire Federal budget” each year.[99] In 2020, the government spent $6.6 trillion,[100] which means it likely lost anywhere from $66 billion to $660 billion to fraud.[101] Yet qui tam actions only recouped approximately $1.7 billion dollars in 2020.[102] Similarly, the government spent $4.4 trillion in 2019,[103] which means it likely lost anywhere from $44 billion to $440 billion to fraud.[104] Qui tam actions only recouped $2.2 billion in 2019.[105] This pattern continues.[106]

Relators are much more effective than the government in FCA litigation, but they only recouped anywhere from 0.5% to 5.1% and 0.3% to 2.6% of monetary losses sustained as a result of fraud in 2019 and 2020, respectively.[107] To increase the recovery of funds, the government must increase incentives for private citizens to bring FCA qui tam actions. With respect to the first-to-file provision, circuit courts applying the essential facts test broadly will best achieve this goal.

V. Courts Should Apply the Essential Facts Tests Broadly

A. A Broad Application Achieves the Best Balance Between the Competing FCA Goals

The goal of the FCA qui tam provision is to encourage whistleblowers to promptly notify the government of fraud, while the goal of the first-to-file provision is to discourage repetitive, opportunistic lawsuits.[108] The circuit courts adopted the essential facts test in order to help balance these competing goals;[109] however, as discussed in Part III, courts have failed to consistently apply the test.[110]

Courts that apply the test broadly advocate in favor of a more restrictive standard that second relators must overcome. These courts analyze claims at a general level, rather than focusing on specific details, in order to determine whether two complaints share all the same essential facts.[111] Additionally, the broad application prioritizes deterring repetitive lawsuits,[112] arguing that relators will be discouraged from filing qui tam actions if repetitive lawsuits are allowed to proceed.[113] Finally, courts that favor a broad application argue that it would be unfair for belated relators to share in the qui tam award because “their allegations are unlikely to increase total recovery” and repetitive claims “do not help reduce fraud or return funds” to the government.[114]

By contrast, courts that narrowly apply the essential facts test argue in favor of less restrictive standards that a second relator must overcome. These courts are more precise and fact specific when analyzing whether two complaints share the same essential facts.[115] The narrow application prioritizes the FCA’s goal of government notice by being overly cautious about how much information the government needs to uncover instances of related fraud.[116]

It is challenging for courts to uniformly apply the essential facts test because it is a fact-specific inquiry by nature. On one hand, later-filed qui tam complaints that allege additional methods, locations, or defendants of a fraudulent scheme may help the government uncover fraud and recoup monetary losses, even when a first relator has already filed a less detailed complaint involving the same company or some of the same methods of fraud.[117] On the other hand, if a court’s comparison of the similarities between the facts in each complaint gets too specific, the test might begin to resemble an identical facts test instead of an essential facts test.[118] As previously noted, every circuit court rejected the identical facts test in favor of the essential facts test in part because the identical facts test would defeat the purpose of FCA qui tam actions.[119] It would discourage plaintiffs from promptly reporting fraud, thereby hindering the government’s ability to recoup money lost to false claims, and it would encourage parasitic lawsuits.[120] An overly narrow interpretation of the essential facts test would lead to similar results. If courts do not bar qui tam actions that are substantially similar to the essential facts of a pending qui tam action, then the settlements for each case would be smaller than if there was only one relator.[121] Smaller awards, or sharing the award with an undeserving plaintiff, would disincentivize individuals from blowing the whistle on fraud and bringing qui tam actions.[122]

Logically, it is tempting to think that the government’s case against a defendant may not be as strong if courts dismiss a more detailed qui tam complaint that alleged new facts or locations about a particular fraudulent scheme. If the government does not have those additional details, then there might be a smaller settlement or judgment, or maybe even no recovery of funds at all. After all, government investigators are often overworked and might not have the resources to thoroughly investigate a fraudulent scheme and uncover related frauds in different locations. Fortunately, this is unlikely to occur because all FCA qui tam plaintiffs must serve the government with “a copy of the complaint and written disclosure of substantially all material evidence and information the [plaintiff] possesses.”[123] Additionally, the complaint “remain[s] under seal for at least 60 days” while the government reviews it.[124] Therefore, the government always has the opportunity to review the allegations in every qui tam complaint a plaintiff files. As such, a broad application of the essential facts test achieves the best balance between the FCA’s competing goals because it discourages parasitic lawsuits by analyzing facts generally instead of specifically, which creates a higher burden for opportunistic plaintiffs to overcome. It also encourages whistleblowers to promptly file their qui tam actions, notifying the government of fraud, because if another FCA qui tam plaintiff files before them, they risk having a court dismiss their claim under the first-to-file provision.

B. A Broad Application in Practice

When courts analyze two complaints side by side to determine whether they share all the same essential facts, they should construe all facts generally. For example, say Complaint One alleges that Company X orders unnecessary medical testing for Disease A in order to receive increased reimbursement payments from Medicare. Complaint Two alleges that Company X’s satellite office prescribes unnecessary medication for Disease A in order to receive increased payments from Medicare. The court should find that the complaints allege the same essential facts because they involve the same company defrauding the government by ordering unnecessary medical treatment for the same disease. In reviewing Complaint One, the government would have likely reviewed all of Company X’s Medicare claims related to Disease A, and it would have uncovered the unnecessary prescriptions. The second relator’s claim should be dismissed under the first-to-file provision, and the first relator should be the sole beneficiary of the relator award. The first relator is content with his decision to blow the whistle, and the second relator now knows he will have to file his complaints more promptly in the future.

However, construing all facts generally does not mean the court should ignore completely different material facts. Consider example two: Complaint One alleges Hospital Y orders unnecessary medical procedures for children with Disease A. Complaint Two alleges Hospital Y’s nursing home facility unnecessarily overbills elderly patients for medical treatment they never received. In this case, even construing the facts generally, the court should find that the government could not have uncovered the fraud in Complaint Two based off the facts alleged in Complaint One. First, the government might not review the nursing home’s billing records based off a complaint about Hospital Y’s pediatric billing practices. Second, even if the government did review the nursing home’s records, it is unlikely that the government could figure out that elderly patients never received the services the nursing home billed them for without a complaint that alleged that fact. In this case, the government should find that the complaints do not share all the same essential facts, and the first-to-file provision does not bar Complaint Two. The court should allow the two complaints to carry on as separate lawsuits that uncovered two distinct types of fraud. This way, both relators are awarded a portion of their respective judgments. The court should avoid consolidating the cases because then only the first relator would receive a portion of the judgment, or both relators would receive a smaller award than they would have received if the complaints were kept separate.[125] Consolidating the cases would disincentivize future relators from coming forward and reporting fraud because someone else may recover for the fraud the second relator disclosed, or the second relator may receive a small award that would not make the process of filing the qui tam action worth the hassle.[126]

VI. Conclusion

Many government-funded programs, such as Medicare, Medicaid, the Universal Services Program, and more, are intended to provide much needed benefits for the community.[127] Instead, they have turned into a vehicle for businesses to carry out fraudulent schemes in order to steal public funds from the government.[128] The impact of fraud on the federal government cannot be overstated. The government loses billions of dollars each year to false claims, losing anywhere from $66 billion to $660 billion in 2020 alone.[129] Fortunately, the FCA’s qui tam provision effectively allows the government to combat fraud and recover funds by allowing private citizens to file FCA actions on behalf of the government.[130] Nevertheless, the government is only returning a small percentage of lost funds to the federal fisc each year.[131]

Increasing incentives for relators to promptly file qui tam actions and notify the government of fraud will improve the ability of the government to recover monetary losses sustained as a result of fraud.[132] A broad application of the first-to-file provision’s essential facts test will help achieve this goal. A broad application incentivizes whistleblowers to promptly file their qui tam actions because if another FCA qui tam plaintiff files before them, they risk having a court dismiss their claim under the first-to-file provision.[133] Additionally, a broad application of the essential facts test furthers the first-to-file provision’s goal of discouraging parasitic lawsuits by analyzing facts generally instead of specifically, which creates a higher burden for opportunistic plaintiffs to overcome.[134] Overall, a broad application of the first-to-file provision’s essential facts test will incentivize relators to report fraudulent schemes quicker, which will allow the government to investigate fraud more effectively while also conserving judicial resources.

Chelsea Ogan

  1. Juliette Cubanski et al., A Primer on Medicare: Key Facts About the Medicare Program and the People It Covers, Kaiser Fam. Found. (Mar. 20, 2015), https://www.kff.org/report-section/a-primer-on-medicare-how-does-medicare-pay-providers-in-traditional-medicare/ [https://perma.cc/E6U5-3Z2V].

  2. E-Rate: Universal Service Program for Schools and Libraries, Fed. Commc’ns Comm’n, https://www.fcc.gov/sites/default/files/e-rate_universal_service_program_for_schools_and_libraries.pdf [https://perma.cc/R3CM-F8JE] (Dec. 31, 2019).

  3. See United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 300–01 (4th Cir. 2017).

  4. See United States ex rel. Health v. AT&T, Inc., 791 F.3d 112, 117 (D.C. Cir. 2015).

  5. See infra Part IV.

  6. See 31 U.S.C. § 3729(a)(1) (“[A]ny person who knowingly presents . . . a false or fraudulent claim for payment or approval . . . is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000 . . . plus 3 times the amount of damages which the Government sustains because of the act of that person.”); S. Rep. No. 99-345, at 1 (1986) (“The purpose of S. 1562, the False Claims Reform Act, is to enhance the Government’s ability to recover losses sustained as a result of fraud against the Government.”).

  7. S. Rep. No. 99-345, at 2.

  8. See, e.g., Scott Glass, Note, Is the False Claims Act’s First-to-File Rule Jurisdictional?, 118 Colum. L. Rev. 2361, 2376–81 (2018) (discussing the disagreement among federal circuits regarding whether the first-to-file provision is a jurisdictional or nonjurisdictional bar); Joel Deuth, Comment, The False Claims Act’s First-to-File Bar: How the Particularity Requirement of Civil Procedure Militates Against Combating Fraud, 62 Cath. U. L. Rev. 795, 814–17 (2013) (discussing the inconsistent results between courts’ interpretations of the FCA’s first-to-file provision and Fed. R. Civ. P. 9(b) pleading requirements).

  9. 31 U.S.C. § 3730(b)(5). A qui tam provision allows private citizens, or “relators,” to file a lawsuit for statutory violations on the United States’ behalf. Glass, supra note 8, at 2365–66; see also 31 U.S.C. § 3730(b)(1) (“A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.”). For FCA qui tam actions, the U.S. Government has sixty days to investigate the claim, and it can choose to intervene in the action or allow the private citizen to proceed alone. Glass, supra note 8, at 2367–68; see also 31 U.S.C. § 3730(b)(2) (“The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information.”).

  10. See, e.g., United States ex rel. Health v. AT&T, Inc., 791 F.3d 112, 116 (D.C. Cir. 2015); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 32 (1st Cir. 2009); United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 169 (2d Cir. 2018); United States ex rel. LaCorte v. SmithKline Beecham Clinical Lab’ys, Inc., 149 F.3d 227, 232–33 (3d Cir. 1998); United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 302 (4th Cir. 2017); United States. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 377–78 (5th Cir. 2009); Walburn v. Lockheed Martin Corp., 431 F.3d 966, 971 (6th Cir. 2005); United States ex rel. Chovanec v. Apria Healthcare Grp. Inc., 606 F.3d 361, 363 (7th Cir. 2010); United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1188–89 (9th Cir. 2001); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir. 2004). Note that some courts refer to “essential facts” as “material facts.” See Chovanec, 606 F.3d at 363 (referring to the appropriate test as “‘material facts’ or alternatively ‘the essential facts’”) (internal parenthesis omitted).

  11. Compare Duxbury, 579 F.3d at 33 (holding that a later-filed FCA complaint alleged different essential facts from the first-filed complaint despite significant similarities because the later complaint alleged additional facts in significant detail), with Grynberg, 390 F.3d at 1280 (holding that two FCA complaints were related under the first-to-file provision despite the later-filed complaint alleging additional, more detailed facts).

  12. S. Rep. No. 99-345, at 8 (1986).

  13. See, e.g., Fixing the False Claims Act: The Case for Compliance Focused Reforms, Inst. for Legal Reform 1 (Oct. 23, 2013), https://instituteforlegalreform.com/research/fixing-the-false-claims-act-the-case-for-compliance-focused-reforms/ [https://perma.cc/YE5P-VD8U].

  14. S. Rep. No. 99-345, at 2.

  15. Id.

  16. Id. at 3.

  17. Id.

  18. Id. at 4.

  19. Id. at 2.

  20. Id. at 34 (discussing the addition of an anti-retaliation provision to the FCA). Private citizens who file complaints against companies for submitting false claims, also known as whistleblowers, are officially referred to as relators in FCA qui tam actions “because the action is brought ‘on relation of’ the citizen.” John C. Kunich, Qui Tam: White Knight or Trojan Horse, 33 A.F. L. Rev. 31, 32, 36 (1990).

  21. S. Rep. No. 99-345, at 27 (1986) (discussing the increase in the award amount relators can receive from 10% to 20% in actions where the government intervenes and an increase from 25% to 30% in actions where the relator proceeds alone).

  22. Id. at 29 (discussing the codification of awarding attorney’s fees to relators).

  23. Id. at 16.

  24. 31 U.S.C. § 3730(b)(5) (“When a person brings an action under [the qui tam] subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”).

  25. S. Rep. No. 99-345, at 25.

  26. See, e.g., Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2005) (“The history of the False Claims Act’s qui tam provisions demonstrates repeated attempts by Congress to balance two competing policies. On the one hand, the qui tam provisions seek to encourage ‘whistleblowers to act as private attorneys-general’ in bringing suits for the common good. On the other, the provisions seek to discourage opportunistic plaintiffs from bringing parasitic lawsuits whereby would-be relators merely feed off a previous disclosure of fraud.” (citations omitted) (first quoting United States ex rel. McKenzie v. BellSouth Telecomms., Inc., 123 F.3d 935, 938 (6th Cir. 1997); and then quoting United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041–42 (6th Cir. 1994))); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 16 (1st Cir. 2009) (“Congress has amended the FCA several times ‘to walk a fine line between encouraging whistle-blowing and discouraging opportunistic behavior.’” (quoting United States ex rel. S. Prawer v. Fleet Bank of Me., 24 F.3d 320, 324–26 (1st Cir. 1994))).

  27. See United States ex rel. LaCorte v. SmithKline Beecham Clinical Lab’ys, Inc., 149 F.3d 227, 232–33 (3d Cir. 1998) (discussing how Congress intended courts to apply the first-to-file provision through statutory interpretation).

  28. See id. at 232–34.

  29. See id.; United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1188 (9th Cir. 2001).

  30. LaCorte, 149 F.3d at 232–33.

  31. S. Rep. No. 99-345, at 25 (emphasis added); see also LaCorte, 149 F.3d at 233 (“To support their argument that section 3730(b)(5) applies only to later-filed claims based on identical facts, the later qui tam plaintiffs rely primarily upon the statute’s scant legislative history . . . .”).

  32. See Deuth, supra note 8, at 802–03; Jonathan Lester, The Winner Takes It All, but Who Gets to Play? The False Claims Act’s First to File Rule and Jurisdiction, 61 B.C. L. Rev. E. Supp. II.-410, II.-415–16 (2020).

  33. LaCorte, 149 F.3d at 233 (emphasis added).

  34. Id. at 233–34 (“Defining ‘facts underlying the pending action’ as identical facts would . . . unnecessarily handicap[] future government efforts to recover fraudulently obtained funds. Under [that] overly narrow interpretation, dozens of relators could expect to share a recovery for the same conduct, decreasing their incentive to bring a qui tam action in the first place. By contrast, interpreting section 3730(b)(5) as imposing a broader bar furthers the Act’s purpose by encouraging qui tam plaintiffs to report fraud promptly.”).

  35. Currently, only the Eighth Circuit has not addressed the issue of whether two claims are related under the first-to-file provision. The D.C., First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all adopted the essential facts test. See, e.g., United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 116 (D.C. Cir. 2015); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 16, 32 (1st Cir. 2009); United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 169 (2d Cir. 2018); LaCorte, 149 F.3d at 232–33; United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 302 (4th Cir. 2017); United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 377–78 (5th Cir. 2009); Walburn v. Lockheed Martin Corp., 431 F.3d 966, 971 (6th Cir. 2005); United States ex rel. Chovanec v. Apria Healthcare Grp. Inc., 606 F.3d 361, 363 (7th Cir. 2010); United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d at 1188–89; Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir. 2004); Cho ex rel. States v. Surgery Partners, Inc., 30 F.4th 1035, 1042 (11th Cir. 2022); United States ex rel. Sandager v. Dell Mktg., L.P., 872 F. Supp. 2d 801, 807 (D. Minn. 2012) (noting that "[t]he Eighth Circuit has not addressed the first-to-file bar . . . ").

  36. Duxbury, 579 F.3d at 32 (quoting LaCorte, 149 F.3d at 232–33).

  37. Id.; see also Wood, 899 F.3d at 169.

  38. See Heath, 791 F.3d at 121; United States ex rel. Ven-A-Care of the Fla. Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d 932, 937–38 (1st Cir. 2014); Branch Consultants, 560 F.3d at 378.

  39. See Deuth, supra note 8, at 804 & n.55.

  40. In the context of this Note, a broad application means the judicial panel gives wide latitude regarding what types of facts are related. Take the following example: Two relators file FCA complaints against a hospital for overcharging patients in order to receive increased Medicare payments. The first complaint alleges that the hospital provided unnecessary medical procedures to patients. The second complaint alleges that the hospital prescribed unnecessary medication to patients. A judicial panel applying the test broadly would find that the two complaints are related under the first-to-file provision because both complaints allege medical fraud through unnecessary treatments. A narrow application, on the other hand, means the judicial panel takes a stricter approach regarding what types of facts are related. In the above example, a judicial panel applying the test narrowly would find that the complaints are not related because the actual methods of fraud (unnecessary procedures vs. unnecessary medication) are different.

  41. Wood, 899 F.3d at 169.

  42. Id. at 167. The Lampkin Complaint stated that Allergan “paid kickbacks to doctors nationwide in the form of free surgical kits that have a greater than nominal value. These free and valuable surgical kits were routinely offered and delivered to physicians to induce the physicians to refer or arrange for a health care item or service to be provided and reimbursed by a federal health care insurance program.” Id. at 169.

  43. Id. at 167.

  44. The Wood Complaint stated, “Allergan successfully induced ophthalmologists, including cataract surgeons, by providing, at no cost, a suite of cataract surgery-related goods, including prescription drugs, patient post-surgery supplies, physician-branded pre-printed prescription pads and prescription pad imprint stamps.” Id. at 167, 169.

  45. Id. at 169 (quoting United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 121 (D.C. Cir. 2015)).

  46. The Wood Complaint also alleged that Allergan provided physicians with numerous goods in addition to the cataract recovery kits such as prescription pads, stamps, and prescription drugs. Id.

  47. See United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 304–05 (4th Cir. 2017).

  48. See id. at 300.

  49. Id.

  50. Id. at 303.

  51. See id. at 300.

  52. Id. at 300–01.

  53. Id. at 304.

  54. Id.

  55. Id. at 302–04 (“The material elements tests bars a later suit ‘if it is based upon the same material elements of fraud as the earlier suit, even though the subsequent suit may incorporate somewhat different details’ . . . . A belated ‘relator who merely adds details to a previously exposed fraud does not help reduce fraud or return funds to the federal fisc., because once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds.’” (first quoting United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 182 (4th Cir. 2013); and then quoting United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 378 (5th Cir. 2009))).

  56. Id. at 304.

  57. Id. at 303–04.

  58. Id. at 304.

  59. Id. at 304–05 (“It is clear that Carson’s allegations are materially similar to those found in Ribik’s complaint . . . . The allegations in Ribik’s earlier-filed complaint ‘provide the government with enough knowledge of essential facts of the scheme to discover related fraud.’ Neither Carson’s factual additions nor the fact that his experience took place in Pennsylvania, as opposed to Ribik’s experience in Virginia, saves him from the first-to-file bar. Carson 'has not managed to avoid § 3730(b)(5)‘s first-to-file bar simply by alleging additional facts relating to how [Manor Care overbilled the government], even though some of those specific allegations were not mentioned in [Ribik’s] complaint.’” (first quoting Carter, 710 F.3d at 182); and then quoting Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1280 (10th Cir. 2004))).

  60. United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 121–23 (D.C. Cir. 2015). However, the D.C. Circuit broadly applied the essential facts test in earlier cases. See United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 218–19 (D.C. Cir. 2003) (finding that two complaints share the same essential facts, even though one complaint alleged corporate subsidiaries committed the fraudulent conduct in certain states while the other complaint alleged the corporate headquarters committed the fraudulent conduct in different states); United States ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir. 2011) (finding that two complaints share the same essential facts, even though one complaint “focused on the fabrication of oral forbearance requests” in Nevada and the other complaint “focused on the offering of forbearances to unqualified borrowers” in New Jersey). In Heath, the First Circuit emphasized that the first-to-file provision barred the second complaints in Hampton and Batiste because “the greater fraud often includes the lesser,” but the first-to-file provision did not bar the second complaint in Heath because “the lesser fraud does not, without more, include the greater.” Heath, 791 F.3d at 122.

  61. See Heath, 791 F.3d at 121.

  62. Id. at 117–18.

  63. E-Rate pricing refers to a government program created by Congress in 1996 that provides certain qualifying schools and libraries with low-cost telecommunications services that is paid for by the Universal Services Fund. Id. at 116–18.

  64. Id. at 117–18.

  65. Id. at 117.

  66. Id. at 121.

  67. Id. (quoting United States ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir. 2011)).

  68. Id. at 117, 121, 124.

  69. Id. at 121.

  70. Id.

  71. The First Circuit’s application of the essential facts test varies. Compare United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 32–33 (1st Cir. 2009) (adopting the essential facts test for the first time and finding that two complaints did not share all the same essential facts because the second complaint alleged numerous methods, “in significant detail,” by which a company promoted a fraudulent scheme, whereas the first complaint only alleged one method of that same scheme), with United States ex rel. Heineman-Guta v. Guidant Corp., 718 F.3d 28, 37–38 (1st Cir. 2013) (finding that two complaints shared the same essential facts because they both alleged that a company “used various forms of kickbacks including lavish dinner programs, honoraria and grants, to induce physicians and hospitals to use its products and, in doing so, caused false claims to be submitted to obtain reimbursement from the government under Medicare,” although the second complaint alleged additional details such as “particular incidents, dates, times [and] names of physicians” involved). It may be of interest to note that the First Circuit held that the first-to-file rule was a jurisdictional bar prior to the 2019 decision United States v. Millennium Laboratories, Inc.; however, the First Circuit overturned itself in Millennium Laboratories and determined the first-to-file rule is a nonjurisdictional bar. See United States v. Millennium Lab’ys, Inc., 923 F.3d 240, 249–52 (1st Cir. 2019).

  72. Millennium Lab’ys, Inc., 923 F.3d at 245–48, 254.

  73. Cunningham’s original complaint was filed in 2010, but he amended it in 2011. Id. at 245. The First Circuit only considered one aspect of the amended complaint in its essential facts analysis. Id. at 245–46.

  74. For its “point-of-care” model, Millennium Laboratories would conduct an initial qualitative drug screening. Id. If the initial drug screening was positive, the laboratory would follow up with a quantitative drug screen and an additional confirmatory drug test. Id. A preliminary, or qualitative, test yields a nonspecific “Positive or Negative result,” while a confirmatory, or quantitative, test yields “an absolute and definite result that indicates the specific drug/compound present.” Laboratory Screening and Confirmation – Defined, Premier Biotech (cleaned up), https://premierbiotech.com/innovation/screen-and-confirm/ [https://perma.cc/CF2Z-D3LM] (last visited July 10, 2022).

  75. Millennium Lab’ys, Inc., 923 F.3d at 245–46.

  76. Id. at 247.

  77. Id. at 246–47.

  78. Id. at 247.

  79. Id. at 248, 252 (“[O]nly the first-to-file relator can claim the relator’s share of the settlement proceedings for each claim.”).

  80. Id. at 252–53 (quoting United States ex rel. Ven-A-Care of the Fla. Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d 932, 938 (1st Cir. 2014)).

  81. Id. at 253–54.

  82. Id. at 253.

  83. Id. at 253–54.

  84. Id.

  85. Id. at 254.

  86. Id.

  87. Qui tam is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” meaning “[he] who brings the action for the king as well as for himself.” Kunich, supra note 20, at 31 n.3.

  88. 25 U.S.C. § 201 (discussing the penalties for Native American protection laws); see also Chris Doyle, Cong. Rsch. Serv., R40785, Qui Tam: The False Claims Act and Related Federal Statutes 33–34 (2021).

  89. See, e.g., Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771–72, 774 (2000) (discussing the issue of standing in qui tam actions); Buckley v. Valeo, 424 U.S. 1, 137–40 (1976) (per curiam) (discussing the issue of the Appointments Clause in statutes that allowed private citizens to bring actions against individuals who violated public laws).

  90. See Doyle, supra note 88, at 4.

  91. See supra Section II.A.

  92. Gregory G. Booker, The False Claims Act: Congress Giveth and the Courts Taketh Away, 25 Hamline L. Rev. 373, 378 (2002). If the government chose not to intervene in a qui tam action, then the case could only proceed “if the allegations were not based on information already in the possession of the government at the time of filing the action.” Id.

  93. Elletta Sangrey Callahan & Terry Morehead Dworkin, Do Good and Get Rich: Financial Incentives for Whistleblowing and the False Claims Act, 37 Vill. L. Rev. 274, 318 (1992).

  94. Fraud Statistics - Overview, U.S. Dep’t Just., https://www.justice.gov/opa/press-release/file/1354316/download [https://perma.cc/Y2UF-3AZX] (last visited July 15, 2022); see supra Section II.A.

  95. Fraud Statistics - Overview, supra note 94.

  96. Id. Additionally, courts awarded relators $7 billion of the $46.5 billion recouped from qui tam actions. Id.

  97. See id.

  98. See id.; supra note 18 and accompanying text.

  99. S. Rep. No. 99-345, at 3 (1986).

  100. Monthly Budget Review: Summary for Fiscal Year 2020, Cong. Budget Off. (Nov. 9, 2020), https://www.cbo.gov/system/files/2020-11/56746-MBR.pdf [https://perma.cc/687M-EVU6].

  101. See generally Joel D. Hesch, Breaking the Siege: Restoring Equity and Statutory Intent to the Process of Determining Qui Tam Relator Awards Under the False Claims Act, 29 T.M. Cooley L. Rev. 217, 224–25 (2012) (calculating the government’s annual monetary losses to fraud).

  102. Fraud Statistics - Overview, supra note 94. The government’s non qui tam FCA actions recouped $545 million. Id.

  103. Monthly Budget Review: Summary for Fiscal Year 2019, Cong. Budget Off. (Nov. 7, 2019), https://www.cbo.gov/system/files/2019-11/55824-CBO-MBR-FY19.pdf [https://perma.cc/DHP7-QGYZ].

  104. See generally Hesch, supra note 101, at 224–25 (calculating the government’s annual monetary losses to fraud).

  105. Fraud Statistics - Overview, supra note 94. The government recouped $844 million in non qui tam FCA actions. Id.

  106. Of course, these numbers do not mean that out of the $66 billion lost to fraud in 2020, only $2.2 billion of that money was recovered. Litigation takes time, and it is very possible that the judgments reported for qui tam actions in 2020 are for cases that relators filed years before. Nevertheless, the statistics show that the annual judgments in qui tam actions are consistently less than 10% of the federal money that is likely lost to fraud each year. Compare Am. Presidency Project, Federal Budget Receipts and Outlays, U.C. Santa Barbara, https://www.presidency.ucsb.edu/statistics/data/federal-budget-receipts-and-outlays [https://perma.cc/P6HS-3W3M] (May 28, 2021) (providing federal spending from 1930–2020), with Fraud Statistics - Overview, supra note 94 (providing the amount recouped from FCA qui tam actions from 1987–2020).

  107. These percentages were calculated by taking the amount recovered from qui tam settlements and judgments in a certain year and dividing it by the total federal outlay (spending) for that year. See Am. Presidency Project, supra note 106 (providing federal spending from 1930–2020); Fraud Statistics - Overview, supra note 94.

  108. United States ex rel. LaCorte v. SmithKline Beecham Clinical Lab’ys, Inc., 149 F.3d 227, 234 (3d Cir. 1998) (“The 1986 amendment, which introduced the current version of section 3730(b)(5), sought to achieve ‘the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.’ In construing section 3730, we are mindful of the need to preserve a balance between the amendment’s two competing goals.” (quoting United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994))).

  109. See supra Section II.B.

  110. See supra Part III.

  111. Compare United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 304–05 (4th Cir. 2017) (finding that a complaint alleging a company submitted fraudulent claims in Pennsylvania for unnecessary therapy modalities such as “electric stimulation, diathermy, and ultra sound” shares all the same essential facts as a general claim that the company overbilled the government for unnecessary physical therapy in Virginia), with United States v. Millennium Lab’ys, Inc., 923 F.3d 240, 253 (1st Cir. 2019) (finding a complaint that alleged a company defrauded the government by ordering unnecessary confirmatory drug tests does not share the same essential facts as a complaint that alleged the same company had standing orders to perform confirmatory drug testing because the “actual mechanism” of fraud was different, and it is “too general” to say that the complaints share all the same essential facts just because they both alleged the company submitted false claims to defraud the government by ordering unnecessary confirmatory drug tests).

  112. United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 378 (5th Cir. 2009) (“Any construction of § 3730(b)(5) that focused on the details of the later-filed action would allow an infinite number of copycat qui tam actions to proceed so long as the relator in each case alleged one additional instance of the previously exposed fraud. This result cannot be reconciled with § 3730(b)(5)'s goal of preventing parasitic qui tam lawsuits.”).

  113. See LaCorte, 149 F.3d at 234 (“Under [the] overly narrow interpretation, dozens of relators could expect to share a recovery for the same conduct, decreasing their incentive to bring a qui tam action in the first place. By contrast, interpreting section 3730(b)(5) as imposing a broader bar furthers the Act’s purpose by encouraging qui tam plaintiffs to report fraud promptly.”).

  114. Id.

  115. See Millennium Lab’ys, Inc., 923 F.3d at 254 (“[W]e must ask not merely whether the first-filed complaint provides some evidence from which an astute government official could arguably have been put on notice, but also whether the first complaint contained all the essential facts of the fraud it alleges.” (emphasis added) (quoting United States ex. rel. Ven-A-Care of the Fla. Keys, Inc. v. Baxter Healthcare Corp., 772 F.3d 932, 938 (1st Cir. 2014))); United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 33 (1st Cir. 2009) (finding two complaints that both generally alleged that a company was prescribing unapproved medication dosages in order to receive increased Medicare payments did not share all the same essential facts because the second complaint alleged five different methods by which the company promoted the unapproved dosage and the first complaint only alleged one method).

  116. See United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 121–22 (D.C. Cir. 2015) (finding that the first-to-file provision did not bar the second complaint because “[n]othing in the [first] complaint would have alerted the United States government to a nationwide scheme” to defraud the government, nor would it have put the government on notice of the fraudulent methods alleged in the second complaint).

  117. See id. at 121.

  118. Under an identical facts test, the first-to-file provision only bars “later qui tam actions arising from facts identical to those underlying a previous suit.” LaCorte, 149 F.3d at 232.

  119. See supra Section II.B.

  120. See LaCorte, 149 F.3d at 233–34 (“The 1986 amendment, which introduced the current version of section 3730(b)(5), sought to achieve ‘the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own’ . . . . Defining ‘facts underlying the pending action’ as identical facts would upset that balance by unnecessarily handicapping future government efforts to recover fraudulently obtained funds. Under [that] overly narrow interpretation, dozens of relators could expect to share a recovery for the same conduct, decreasing their incentive to bring a qui tam action in the first place. By contrast, interpreting section 3730(b)(5) as imposing a broader bar furthers the Act’s purpose by encouraging qui tam plaintiffs to report fraud promptly.” (quoting United States ex. rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994))).

  121. See id. at 234. In certain circumstances, only the first-to-file relator can recover the qui tam award. See Millennium Lab’ys, Inc., 923 F.3d at 252. However, there are certain cases where the government may consolidate FCA qui tam actions and multiple relators share the award. See Largest Health Care Fraud Case in U.S. History Settled HCA Investigation Nets Record Total of $1.7 Billion, U.S. Dep’t Just. (June 26, 2003), https://www.justice.gov/archive/opa/pr/2003/June/03_civ_386.htm [https://perma.cc/T9RU-QFJM].

  122. LaCorte, 149 F.3d at 234.

  123. See 31 U.S.C. § 3730(b)(2).

  124. Id.

  125. See supra note 121 and accompanying text.

  126. See supra notes 120–21 and accompanying text.

  127. See supra Part I.

  128. See United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 303 (4th Cir. 2017); United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 117 (D.C. Cir. 2015).

  129. See supra Part IV.

  130. See supra Part IV.

  131. See supra notes 106–07 and accompanying text.

  132. See supra Part IV.

  133. See supra Part V.

  134. See supra Section V.A.