“First to File” Rule for Whistleblower Claims is Strictly Enforced

Contracts and other legal documents frequently include language declaring that “time is of the essence.” If you’re aware of fraud against the government and are considering acting as a qui tam plaintiff in a whistleblower case under the False Claims Act (FCA), it is vital to file as promptly as possible. 

The "first to file" rule is a critical component of qui tam whistleblower cases. This rule incentivizes individuals to promptly report fraud against the government by granting the first plaintiff to file a lawsuit the right to receive a portion of any financial recovery. However, this provision is strictly enforced, barring subsequent filers from acting as relators, regardless of how soon they file after the initial whistleblower. Even a difference of minutes can be the difference between a large financial recovery and hearing “Thanks, but no thanks” from the government.

There are two main justifications for placing so much emphasis on timeliness. First, the nature of a qui tam case involves alleged misconduct that costs the government a substantial amount of money. The longer that a fraud is allowed to continue, the greater the potential loss. Just as whistleblowers are incentivized to act as plaintiffs on the government’s behalf, the first to file rule strongly encourages them to do so without delay. 

Second, there is often more than one person who is aware of workplace fraud. If everyone got a share of the government’s recovery, the amount of copycat cases would trigger a litigation web that could take years to untangle. Redundant filings in one or more jurisdictions could bring the legal process to a halt. Accordingly, the initial relator is the only one who can share in the recovery, which can range from 15 to 30 percent of the total amount recovered in a judgment or settlement. 

This urgency makes it essential for whistleblowers to take the following steps:

  • Consult an experienced attorney — At Kardell Law Group, we have extensive experience representing whistleblowers in qui tam matters. We’ll give you a quick, well-informed assessment of whether you have a colorable claim under the FCA.  

  • Gather evidence efficiently — Most cases of alleged fraud hinge on documentary evidence. Collect the materials necessary so that your complaint has solid, objective support.

  • File promptly — Timing is critical. You never know if someone else is putting together a lawsuit that resembles yours. 

Our firm provides strong advice and advocacy on a full range of whistleblower claims.