United States, ex rel. Carter v. Halliburton, Co. (III)

U.S. Chamber Urges Fourth Circuit To Affirm FCA First-to-File Bar Looks at Time Suit Is Filed

U.S. Chamber's Position: 

In a case on remand from the U.S. Supreme Court, the U.S. Chamber urged the Fourth Circuit to affirm a district court’s determination that the False Claims Act’s (“FCA”) first-to-file bar requires courts to look at the landscape of possible duplicative suits as of the time the suit at issue was filed.

When the Fourth Circuit first decided this case in 2013, it dramatically increased liability under the Wartime Suspension of Limitations Act (WSLA) by allowing private plaintiffs to go after companies for any alleged fraud against the government while the government is engaged in “armed hostilities.”  (The WSLA was designed to give the government the right to go after criminal fraud that occurred while the United States was at war – even if the statute of limitations had run on the fraud claim.)  Also, the Fourth Circuit interpreted the FCA’s “first to file” provision as allowing relators to file duplicative lawsuits as long as none of the lawsuits was pending at the same time.

The U.S. Supreme Court granted review of the Fourth Circuit’s 2013 decision; reversed in part (holding that the WSLA applies only to criminal offenses); and affirmed in part (permitting a successive suit where its first filed predecessor has been dismissed).

The Chamber’s brief on remand argued that the first-to-file bar limits the kind of duplicative and wasteful qui tam claims at issue in this case and that applying the bar as Congress intended—to require examination of the status of earlier filed suits at the time the later suit is filed—will reduce wasteful and parasitic litigation.

Jonathan S. Franklin and Mark Emery of Norton Rose Fulbright US LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.

Procedural History: 

U.S. Chamber amicus brief filed 9/16/2016.

Oral argument scheduled for 3/22/2017.