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Earlier Complaint Fails 9(b), But Bars FCA Suit

Client Alert | 1 min read | 11.08.11

Addressing a question of first impression for it, the D.C. Circuit in U.S. ex rel Batiste v. SLM Corp. held that the FCA’s “first-to-file” rule deprives the district courts of subject matter jurisdiction when a complaint filed earlier alleges “the same material elements of a fraudulent scheme,” even if the earlier complaint did not meet the heightened standard of Rule 9(b).  In so holding, the D.C. Circuit disagreed with the Sixth Circuit in Walburn v. Lockheed Martin Corp., noting that nothing in the FCA incorporates Rule 9(b)’s particularity requirement into the first-to-file rule and that the earlier complaint was sufficient to allow the government to investigate the fraudulent scheme.

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Client Alert | 3 min read | 04.25.24

JUST RELEASED: EPA’s Bold New Strategic Civil-Criminal Enforcement Collaboration Policy

The Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance (OECA) just issued its new Strategic Civil-Criminal Enforcement Policy, setting the stage for the new manner in which the agency manages its pollution investigations. David M. Uhlmann, the head of OECA, signed the Policy memorandum on April 17, 2024, in order to ensure that EPA’s civil and criminal enforcement offices collaborate efficiently and consistently in cases across the nation. The Policy states, “EPA must exercise enforcement discretion reasonably when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. Criminal enforcement should be reserved for the most egregious violations.” Uhlmann repeated this statement during a luncheon on April 23, 2024, while also emphasizing the new level of energy this collaborative effort has brought to the enforcement programs....

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