Second Circuit: U.S. ex rel. Wood v. Allergan, Inc.
This brief argued in favor of affirmance of the District Court for the Southern District of New York’s ruling denying the defendant’s motion to dismiss in part on first-to-file grounds. The defendant moved for and was granted interlocutory appeal on the question of whether a relator was required to dismiss and refile their complaint if it was barred by the first-to-file provision when it was originally filed, or whether a relator was allowed to amend his or her complaint to cure the defect after the previous cases had been dismissed. The brief argued that the history and policy of the FCA and the 1986 amendments support allowing a first-to-file defect to be cured by supplementation under Rule 15. The brief further explores the implications of a rule mandating refiling for relators and the reasons why such a rule was not intended by Congress in drafting the first-to-file bar.