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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 | 2 min read | 07.15.26

CMMC Phase II Suspension Requires Reconsideration of Such Requirements in Solicitations

As discussed in more detail here, the U.S. Department of War (DoW) recently issued a memorandum (Memo 26-P-1023, dated July 13, 2026) directing the immediate suspension of Cybersecurity Maturity Model Certification (CMMC) Phase II requirements (Level I and II self assessments are still permitted). Significantly, the memo directs that “all pending and future CMMC implementation milestones across DoW solicitations and contracts are held in abeyance until further notice.” Moreover, the DoW issued a memorandum on implementing these requirements (available here), directing agencies to issue amendments removing CMMC Level 2 and 3 requirements from active solicitations “as soon as practicable.” Contractors should monitor the government’s compliance with this requirement and should be prepared, if needed, to file a bid protest to protect their rights....

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