Rule 9B and Complaints in False Claims Act Cases

When people discuss the pleading requirements, what they really mean is the complaint. What has to be in the complaint to fulfill a pleading requirement is what is being dictated by the federal rules of civil procedure. An experienced False Claims Act lawyer can help you draft the complaint and make sure that it includes a pleading requirement.

Failure to Meet the Pleading Requirement

If you cannot meet the burden of the pleading requirement, you can try again. You usually can file for leave to amend the complaint. The court doesn’t have to give you leaves to amend except once by right, but generally where you are just liberally granted if there’s good cause to show that if given leave you can amend the complaint sufficiently to overcome any pleading deficiencies. That’s not endless though and there’s only so much information you can obtain.

With that said, you can be dismissed for failure to plead a cause with particularity under rule 9B and it happens a lot when the plaintiff-relator can not obtain enough information to satisfy the rule to the court’s understanding. That’s why people pay a lot of attention to rule 9B.

The case can be dismissed for lack of pleading for particularity. In fact, usually that’s the first line of defense in a case the defendants will take a look at the case and the first notion that they will usually file is plaintiffs have failed to plead fraud with particularity under rule 9B and everybody is off to the races in terms of litigating that issue just to begin with.

The Importance of Thorough Investigations

With respect to cases that plaintiff’s file, you want to attempt to get all the information that the whistle blower has and put it together. There are two burdens: one is to the rule 9B, but also there is some duty to provide the government with all the evidence that we have in the case under the False Claims Act.

Obtaining information through the client and presenting that to the government, is something a DC whistleblower lawyer does. Once the government takes over the investigation after the initial complaint is filed, it’s the government’s investigation. The government generally does not want plaintiffs and their lawyers investigating the matter after the complaint has been filed. There are exceptions to this and it’s usually something the government works out with an individual later, but that’s usually the procedure that follows.

Generally, if the government intervenes in a case, they have the means through civil investigative demands and through other investigative techniques to obtain the information what would satisfy any pleading requirements. At some point, the case is likely, if the government intervenes, to be sufficiently well-pled and sort of substantial to overcome this burden. As a result, the government’s investigation can be helpful or can be a big part of overcoming that burden if the plaintiff has not been able to do so. It’s usually best to have a specific and as detailed a complaint as possible given all the other burdens that a plaintiff and a plaintiff’s attorney may have prior to filing the case.