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Government's Complaints-In-Intervention Do Not Relate Back To Qui Tam Complaint

Nov.21.2006

In a case with wide-ranging implications in qui tam suits under the False Claims Act, the Second Circuit recently held in U.S. v. Baylor Univ. Medical Center, 2006 WL 3317695 (Nov. 16, 2006), that a government’s complaint-in-intervention cannot relate back, under Rule 15, to a relator’s original qui tam complaint because “the seal provision of the FCA deprives the defendant of notice, which is the touchstone of Rule 15(c)(2).” The court also hinted that a relator’s “grossly insufficient” complaint may not commence an action for statute-of-limitations purposes, in part because it prolongs the time needed by the government to determine whether or not to intervene, thereby delaying “notice” to the defendants and thwarting the purpose of the statute of limitations.

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Brian C. Elmer
Retired Partner – Washington, D.C.
Phone:
Email: belmer@crowellretiredpartners.com