United States ex rel. Todd Heath v. AT&T, Inc.

United States ex rel. Todd Heath v. AT&T, Inc.

Opinion

 [*115]   [**292]  Millett, Circuit Judge: Todd Heath appeals the dismissal of his False Claims Act qui tam suit against AT&T, Inc. and nineteen of its subsidiaries across the United States. The first question presented is whether an earlier and still-pending qui tam lawsuit filed against a single AT&T subsidiary bars this suit under the False Claims Act's first-to-file rule, 31 U.S.C. § 3730(b)(5), which prohibits qui tam actions that rely on the same material fraudulent actions alleged in another pending lawsuit. We hold that the first-to-file bar does not apply because the Wisconsin action alleges fraud based on affirmative pricing misrepresentations by seemingly rogue Wisconsin Bell employees. The present complaint, by contrast, alleges fraud and its [***2]  concealment arising from a centralized and nationwide corporate policy of failing to enforce known statutory pricing requirements.

As a backup, AT&T proposes affirmance on the alternative ground that the complaint fails to plead the alleged fraud with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b). We disagree. The complaint lays out in detail the nature of the fraudulent scheme, the specific governmental program at issue, the specific forms on which misrepresentations were submitted or implicitly conveyed, the particular falsity in the submission's content, its materiality, the means by which the company concealed the fraud, and the timeframe in which the false submissions occurred. That is sufficient on this record for the particular type of statutory fraud asserted in this case.

We accordingly reverse the judgment of the district court and remand for further proceedings.

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