Full opinion text
OPINION AND ORDER JESSE M. FURMAN, United States District Judge: TABLE OF CONTENTS INTRODUCTION.. .782 BACKGROUND... 782 A.Relevant Statutes.. .783 B. The Alleged Scheme... 784 C. Other Cases and Procedural History. . .786 LEGAL STANDARDS... 787. DISCUSSION.. .788 A. The Public Disclosure Bar... 788 B. The First-to-File Bar... 790 1. Related Actions... 790 2. Whether the First-to-File Bar Requires Dismissal.. .792 C. Statute of Limitations... 800 D. The Anti-Kickback Statute... 805 1. Drug Samples and Patient Care Kits.. .806 2. Patient Instruction Sheets and Prescription Pads... 808 E. The False Claims Act.. .809 1. The PPACA.. .812 2. Express Certification... 813 3. Implied Certification... 815 4. Third-Party Claim Submissions... 818 F. Rule 9(b)... 819 1. FERA...820 2. Counts I and II: Subsections (a)(1)(A) and (a)(1)(B).. .821 3. Count III: Subsection (a)(1)(C).. .825 4. Count IV: Subsection (a)(1)(G).. .826 5. The Scope of the Scheme and Scien-ter. . .827 G. The Retaliation Claim... 830 H. State Law Claims... 831 I. Wisconsin... 831 2. Delaware, New Mexico, and Texas. . .832 3. Retroactivity and Timeliness.. .833 CONCLUSION,.. 834 INTRODUCTION In this qui tam proceeding, Plaintiff-Relator John A. Wood brings claims under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., ánd state analogues against Defendant Allergan, Inc. (“Allergan”), a pharmaceutical company that develops and manufactures eye care prescription drugs. Wood alleges, among other things, that Allergan violated the FCA and the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b(b), by providing substantial quantities of free drugs and other goods to physicians in exchange for their prescribing to beneficiaries of Medicare, Medicaid, and other government programs the company’s brand name drugs. (Docket No. 38 (“Third Am. Compl.”) ¶¶ 1-12). Wood also brings parallel claims under state law on behalf of twenty-five states (id. ¶¶ 291-473), and alleges that he was unlawfully terminated in retaliation for his whistleblowing actions. (Id. ¶¶ 258-274; 288-290). Now; pending is Allergan’s motion, pursuant, to Rules 9(b) and 12(b) of the Federal' Rules of Civil Procedure, to dismiss the Third Amended Complaint. Allergan’s motion confirms that, when the Supreme Court observed last year that the FCA’s "qui tam provisions present many interpretive challenges,” it was, if anything, engaging in rhetorical understatement. Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, — U.S. -, 135 S.Ct. 1970, 1979, 191 L.Ed.2d 899 (2015). The motion presents several issues that neither the Supreme Court nor the Second Circuit has addressed and upon which other federal courts-have divided, including whether the FCA’s bar on actions brought while a related action is pending (the so-called “first-to-fíle” rule) is a jurisdictional or non-jurisdictional rule and, relatedly, whether a violation of the rule compels dismissal or can be cured through the filing of a new pleading; and whether a. relator, can rely on a subsection of the statute that permits claims to be brought up to ten years after they accrued where the relevant facts are not known to “the official of the United States charged with responsibility to act.” It also calls upon the Court to interpret and apply the Supreme Court’s recent decision in Universal Health Servs., Inc. v. United States ex. rel. Escobar, — U.S. -, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016), which partially altered the FCA landscape. The issues , are too complicated and the Court’s holdings are too numerous to usefully summarize here. For now, it suffices to say that, for the lengthy reasons discussed below, Allergan’s motion to dismiss is largely denied. BACKGROUND Generally, in considering a motion to dismiss, a court is limited to the facts alleged in the complaint and is required to accept those facts as true. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). A court, however, .may also consider documents attached to the complaint; statements or documents incorporated into the complaint by reference; and, more relevant here, matters of which judicial notice may be taken, such as public records. See, e.g., McBeth v. Porges, 171 F.Supp.3d 216, 221 (S.D.N.Y. 2016). Accordingly, the following facts are taken from the Third Amended Complaint, materials incorporated by reference therein, and documents of which the Court may take judicial notice. A. Relevant Statutes The statutes at the heart of this case are discussed in more detail below, but a brief introduction to them is warranted at the outset. As noted, Wood brings claims under the FCA. To the extent relevant here, the FCA imposes significant penalties on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” or any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)-(B); see also Escobar, 136 S.Ct. 1989. Under Second Circuit law, a claim can be “factually” false or “legally” false. See Mikes v. Straus, 274 F.3d 687, 696 (2d Cir. 2001), abrogated in part by Escobar, 136 S.Ct. at 2001. Factually false claims involve “an incorrect description of goods or services provided or a requirement for goods or services never provided,” Mikes, 274 F.3d at 697, whereas legally false claims are “predicated upon a false representation of compliance with a federal statute or regulation or a prescribed contractual term,” id. at 696. An “expressly” false claim is one that “certifies compliance with a particular statute, regulation, or contractual term, where compliance is a prerequisite to payment.” Id. at 698. By contrast, “implied” false claims occur where a defendant makes or causes to be made “representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements,” so long as those omissions “render the .defendant’s representations misleading with respect to the goods, or services provided.” Escobar, 136 S.Ct. at 1999. ' As a qui tom-statute, the FCA permits private persons, known as “relators,” to bring actions to recover damages on behalf of the United States. 31 U.S.C, § 3730(b). The statute includes other procedural quirks as well, several of which loom large in this case.: First, the statute" provides that a relator must file his or her complaint under seal so as to permit the government to -decide whether it wants to intervene. See id. § 3730(b)(2). At the Government’s request, the seal can remain in effect indefinitely; moreover, even if the Government declines to intervene at the outset, it may do so at any point later in the litigation upon a showing of good cause. See id. § 3730(b)(3). Second, certain provisions of the statute provide incentives for relators to file quickly, while balancing the Government’s interest in notice with concerns about parasitic 'or opportunistic law suits. The “first-to-file”' bar, for-instance, states that once an action has been brought, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” Id. § 3730(b)(5). Relatedly, the “public disclosure” bar generally requires courts to “dismiss an action” if “substantially the same allegations or transactions as alleged in the' action or claim were publicly disclosed” at an earlier date. Id. § 3730(e)(4)(A). In isolation, each of these requirements presents interpretive challenges; taken together, they create a veritable thicket of complexity. The gravamen of Wood’s FCA claims, as discussed below, is that Allergan induced physicians to prescribe its drugs to recipients of federal benefits (such as Medicare and Medicaid) by providing unlawful remuneration — including free drug samples — in violation of the AKS, 42 U.S.C. § 1320a-7b(b). To the extent relevant here, the AKS imposes criminal liability on any person who “knowingly and willfully offers or pays any remuneration ... to induce [any] person” to prescribe a drug “for which payment may be made in whole or in part under a Federal health care program.” Id. In 2010, Congress amended the AKS to make clear that “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim” for purposes of the FCA. Patient Protection and Affordable Care Act (“PPACA”), Pub. L. No. 111-148, § 6402(f), 124 Stat. 119, 759 (2010). Complicating matters, however, another statute — the Prescription Drug Marketing Act of 1987 (“PDMA”), 21 U.S.C. §§ 301 et seq. — expressly authorizes drug manufacturers to provide samples of their drugs to licensed practitioners who request them, so long as certain recordkeeping requirements are met. 21 U.S.C. § 353(d). That provision — an exemption from the PDMA’s prohibition on the sale, purchase, or trade of “any drug sample,” defined as “a unit of drug ... which is not intended to be sold and is intended to promote the sale of the drug,” id. § 353(c)(1)-is intended to allow a manufacturer to “acquaint the practitioner with the therapeutic value of the medication and thus encourage the written prescription of the drug.” S. Rep. No. 100-303, at 2-3 (1988), reprinted in 1988 U.S.C.C.A.N. 57, 58-59. B. The Alleged Scheme Allergan is a pharmaceutical company that “has been a pioneer in the development of prescription eye care products,” which it develops, manufactures, and markets for use in the cataract surgery setting. (Third Am. Compl. ¶ 22). Wood was employed by Allergan as a Senior Territory Manager from October 2008 to July 2010, during which time he discovered that Allergan was engaging in practices that allegedly violated the AKS and the FCA. (Id. ¶¶ 18-19). Specifically, Wood alleges that — from at least 2003 through 2011— Allergan provided substantial numbers of free custom care kits, drug samples, customized patient instruction sheets, and customized, pre-printed prescription pads to induce physicians to prescribe Allergan drugs to their cataract patients, most of whom were Medicare or Medicaid recipients. (Id. ¶¶ 42, 100-101, 125). Allergan executives were purportedly aware of, and encouraged, the provision of these free goods in exchange for the prescription of Allergan drugs. (See ¶¶ 125-136). For the custom care kits, Allergan sales representatives worked with ophthalmologist offices nationwide to determine which of twelve different versions of the kit each office preferred to receive pursuant to a signed “Custom Care Kit Agreement.” (Id. ¶¶ 137, 141). Pursuant to these Custom Care Kit Agreements, Allergan provided well over 100 million dollars’ worth of free drug samples to physicians. (See id. ¶¶ 148-150 (detailing nearly 150 million dollars’ worth of samples distributed during a single six-month period)). Notably, however, Allergan provided the free kits only to physicians who agreed to prescribe its drugs and, for physicians already doing so, those who agreed to prescribe large quantities of those drugs. (Id. ¶¶ 155-157). Allergan tracked the ratio of free drug samples provided to drugs prescribed by each doctor, and the company would stop providing free kits to physicians who were not prescribing sufficient quantities of its drugs. (Id. ¶¶ 155-160). In late 2008, Allergan stopped providing free custom care kits based on growing concerns over the program’s legality. (Id. ¶¶ 161-163). After terminating its custom care kit program, Allergan continued to provide free drug samples to physicians, who would submit signed “Sample Shipment Agreements” to the company’s sales representatives to order large, six-month supplies of free product samples. (Id. ¶¶ 167-173). These Agreements were provided only to physicians who already prescribed or agreed to prescribe Allergan drugs in sufficient quantities; physicians who failed to do so ceased to receive free product samples. (Id. ¶¶ 174, 176, 184). In June 2010, Allergan halted its practice of providing these shipments of drug samples, again due to legality concerns. (Id. ¶¶ 185-188). Wood alleges, however, that Allergan continued to provide cooperative physicians with office supplies, such as customized prescription pads, with pre-printed prescriptions for Allergan drugs and customized patient instruction sheets. (Id. ¶ 208). Until December 2008, Allergan representatives worked with physicians to custom design these patient instruction sheets. (Id. ¶ 209-210). After 2008, however, the company purchased a subscription to a design website that allowed physicians to create their own instruction sheets, with Allergan covering all the costs of printing and shipping. (Id. ¶ 211). Through this website, physicians could also order customized, pre-printed prescription sheets, with all costs again covered by Allergan. (Id. ¶ 212, 214). These inducements were also provided only to physicians who prescribed, or agreed to prescribe, Allergan drugs in sufficient quantities. (Id. ¶ 215). Wood alleges that Allergan’s provision of these free products — including the drug samples worth hundreds of millions of dollars — induced participating physicians to write hundreds of thousands of prescriptions for Allergan drugs in violation of the AKS. (Id. ¶¶ 219-220). Pharmacies then filled these prescriptions, unwittingly submitting “false” claims for reimbursement to federal and state healthcare programs, including Medicare, Medicaid, the Federal Employee Health Benefits Plan (“FEHBP”), and the Department of Defense TRICARE program (formerly known as CHAMPUS), and CHAMPVA. (Id. ¶ 101, 230). In doing so, Allergan caused physicians and pharmacies to falsely certify compliance with applicable federal and state laws. (Id. ¶¶ 239-244). For example, pharmacies affix their unique provider identification numbers to every electronic claim submitted for Medicaid reimbursement; .these identification numbers “serve as electronic stamps” indicating the pharmacies “are in compliance with all applicable federal and state laws.” (Id. ¶ 227). Additionally, in the Medicare context, physician-providers must sign agreements certifying their compliance with federal law and their understanding that Medicare reimbursement is conditioned on compliance with, among other statutes, the AKS. (Id. ¶ 242 (discussing Centers for Medicare and Medicaid Services (“CMS”) Forms 865A and 855I)). Finally, Wood alleges that he was fired by Allergan soon after, and in retaliation for, reporting the illegal sampling and kickback scheme to Allergan’s Compliance and. Human Resources Departments. (Id. ¶¶ 268-274). C. Other Cases and Procedural History Significantly, Wood was not the first person to bring FCA claims against Allergan along the lines of those alleged here. On October 29, 2008, a relator filed United States ex rel. Lampkin v. Johnson & Johnson, Inc., No. 08-CV-5362 (D.N.J.), alleging that Allergan, along with two other pharmaceutical companies, violatéd thé AKS and thereby the FCA by shipping free surgical kits to physicians nationwide to induce them to prescribe a particular Allergan drug. (See Docket No. 68 (“Partridge Decl.”) Exs. 2, 3). And on January 11, 2010, another relator filed United States ex rel. Caryatid, LLC v. Allergan, Inc., No. 10-CV-46 (D.D.C.), alleging similar violations resulting from Allergan’s provision of free surgical kits to physicians. (See Partridge Decl., Exs. 1, 4). The United States declined to intervene in both actions, resulting in the complaints eventually being unsealed — in Caryatid, on July 27, 2011, and in Lampkin, on February 16, 2012. (See id. Ex. 2 ("Lampkin Docket”) No. 26; id. Ex. 4 (“Caryatid Docket”) No. 15), On January 23, 2012, the Caryatid action was dismissed pursuant to the, relator’s unopposed motion to dismiss for failure to timely serve Allergan. (See Caryatid Docket No. 16). The Lampkin action was dismissed with respect to Allergan for failure to serve on December 14, 2012. (See Lampkin Docket No. 54). On May 13, 2013, the entire action was dismissed, when the court granted the remaining defendant’s motion to dismiss. (See id. Docket No. 59). On July 26, 2010 — during the time that the Lampkin and. Caryatid actions were under seal, but before they were dismissed — Wood filed this action under seal on behalf of the United States, twenty-six states, and the District of Columbia. (Docket No. 1; Docket No. 61 (“Original Compl.”)). Nearly six years later, in March 2016, the United States and the states declined' to intervene. (Docket Nos. 25, 26). Thereafter, the Court unsealed Wood’s original complaint and two amended complaints (which had been filed while the case was entirely under seal). (Docket Nos. 27, 59, 63). On May 23, 2016, Wood filed the operative complaint, the Third Amended Complaint, which expanded his allegations - concerning the kickback scheme and dropped claims on behalf of Maryland and New Hampshire. (Third Am. Compl.; Docket No. 73 (“Wood Opp’n”), at 1 n.l (acknowledging that the Third Amended Complaint does not include claims on behalf of New Hampshire even though it is included in the caption)). Allergan moved to dismiss the Third Amended Complaint on August 4, 2016. (Docket No. 64). The United States did not change course and intervene, but it did file two Statements of Interest in connection with the motion to dismiss, primarily to address implications of the Supreme Court’s 2016 decision in Escobar. (Docket No. 78 (“Gov’t SOI”); Docket No. 91 (“Gov’t Supp. SOI”)). In light of those Statements, and an amicus brief filed on behalf of Pharmaceutical Research and Manufacturers of America (Docket Nos. 83, 84), the motion did not become fully briefed until December 23, 2016, when Allergan filed its final reply. (Docket No. 99 (“Allergan Reply”)). On March 20, 2017, the Court held oral argument, in which the parties and the United States participated. (See Transcript of Oral Argument on March 20, 2017 (“Tr.”)). LEGAL STANDARDS When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must “aecept[ ] all factual allegations in the complaint and draw[ ] all reasonable inferences in the plaintiffs favor.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The Court will not dismiss any claims pursuant to Rule 12(b)(6) unless the plaintiff fails to plead sufficient facts to state a claim to relief that is facially plausible, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), that is, one that contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). More specifically, a plaintiff must allege facts showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Further, if a plaintiff has not “nudged [its] claims across the line from conceivable to plausible, [those claims] must be dismissed.” Id. at 570, 127 S.Ct. 1955. As the FCA is an anti-fraud statute, Wood’s claims must also comply with Rule 9(b) of the Federal Rules of Civil Procedure, which requires a plaintiff to plead fraud claims “with particularity.” Fed. R. Civ. P. 9(b). To comply with Rule 9(b), a complaint “must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (internal quotation marks omitted). “In other words, Rule 9(b) requires that a plaintiff set forth the who, what, when, where and how of the alleged fraud.” United States ex rel. Polansky v. Pfizer, Inc., No. 04-CV-704 (ERK), 2009 WL 1456582, at *4 (E.D.N.Y. May 22, 2009) (internal quotation marks omitted). Whether a complaint complies with the Rule, however, depends “upon the nature of the case, the complexity or simplicity of the transaction or occurrence, the relationship of the parties and the determination of how much circumstantial detail is necessary to give notice to the adverse party and enable him to prepare a responsive pleading.” In re Cardiac Devices Qui Tam Litig., 221 F.R.D. 318, 333 (D. Conn. 2004) (internal quotation marks omitted). In particular, “where the alleged fraudulent scheme involved numerous transactions that occurred over a long period of time, courts have found it impractical to require the plaintiff to plead the specifics with respect to each and every instance of fraudulent conduct.” Id.; see United States v. Wells Fargo Bank, N.A., 972 F.Supp.2d 593, 615-16 (S.D.N.Y. 2013). Thus, “where a relator pleads a complex and far-reaching fraudulent scheme with particularity, and provides examples of specific false claims submitted to the government pursuant to that scheme, a relator may proceed to discovery on the entire fraudulent scheme.” United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 510 (6th Cir. 2007). Specific examples, however, “will support more generalized allegations of fraud only to the extent that [they] are representative samples of the broader class of claims.” Id. (emphasis omitted); see also Wells Fargo, 972 F.Supp.2d at 615-16. By contrast, Rule 9(b) permits scienter to be alleged “generally,” Fed. R. Civ. P. 9(b), and requires only that a defendant have acted “knowingly” rather than “proof of [a] specific intent to defraud,” 31 U.S.C. § 3729(b)(1). DISCUSSION Allergan moves to dismiss the Third Amended Complaint on several grounds. First, Allergan contends that the Court lacks jurisdiction to hear this action under the FCA’s “public disclosure” and “first-to-file” bars. Second, Allergan alleges that, even if neither of those bars applies, the majority of Wood’s claims fall outside the FCA’s statute of limitations, as measured from the Third Amended Complaint. Third, Allergan asserts that Wood fails to plead a predicate violation of the AKS, in part because the PDMA expressly authorizes drug manufacturers to provide free samples to physicians. Fourth, with respect to the FCA claims, Allergan contends both that Wood’s theory of falsity (as to pre-PPACA claims) fails as a matter of law and that Wood fails to plead any false claim with the particularity required under Rule 9(b). Fifth, Allergan challenges several of Wood’s state law claims on similar grounds. And finally, Allergan asserts that Wood fails to state a retaliation claim as a matter of law. The Court addresses each argument in turn, beginning with the two purportedly jurisdictional issues; A. The Public Disclosure Bar Allergan’s first argument is that the Court lacks subject-matter jurisdiction because of the FCA’s “public disclosure bar,” which, as noted above, generally requires courts to dismiss an action or claim “if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed” in a judicial proceeding, a governmental report, hearing, audit, or investigation, or in the news media. 31 U.S.C. § 3730(e)(4)(A). Until 2010, the public disclosure bar was unambiguously jurisdictional: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions....” 31 U.S.C. § 3730(e)(4)(A) (2009). In the PPACA, however, Congress amended the provision to remove any reference to jurisdiction. See Pub. L. No. 111-148, § 10104(j)(2), 124 Stat. 119, 901-902 (2010). Thus, it now states only that “[t]he court shall dismiss an action or claim” that has been publicly disclosed. 31 U.S.C. § 3730(e)(4)(A) (2010). In the wake of that amendment, courts are divided over whether the public disclosure bar is jurisdictional or non-jurisdictional. Compare, e.g., United States ex rel. Kester v. Novartis Pharma. Corp. (Novartis V), 43 F.Supp.3d 332, 345-346 (S.D.N.Y. 2014) (jurisdictional), with Ping Chen ex rel. United States v. EMSL Analytical, Inc., 966 F.Supp.2d 282, 294 (S.D.N.Y. 2013) (non-jurisdictional). Either way, however, it does not apply here. Whether the public disclosure bar applies turns on whether the allegations in Wood’s complaint were “publicly disclosed” prior to his filing of the initial complaint in July 2010. Significantly, nine courts of appeals have held that the bar applies only where there has been a disclosure outside of the government. See, e.g., United States ex rel. Chattanooga-Hamilton Cty. Hosp. Auth., 782 F.3d 260, 265-66 (6th Cir. 2015); United States ex rel. Little v. Shell Exploration Prod. Co., 602 Fed.Appx. 959, 974 (5th Cir. 2015); United States ex rel. Wilson v. Graham Cnty. Soil & Water Conservation Dist., 777 F.3d 691, 696-98 (4th Cir. 2015); United States ex rel. Oliver v. Philip Morris USA Inc., 763 F.3d 36, 42 (D.C. Cir. 2014); United States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195 (9th Cir. 2009); United States ex rel. Maxwell v. Kerr-McGee Oil & Gas Corp., 540 F.3d 1180, 1184 (10th Cir. 2008); United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 730-31 (1st Cir. 2007); United States ex rel. Cantekin v. Univ. of Pittsburgh, 192 F.3d 402, 408 (3d Cir. 1999); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1494 (11th Cir. 1991). These courts have reasoned that “the phrase ‘public disclosure’ would be superfluous” if “providing information to the government were enough to trigger the bar.” Rost, 507 F.3d at 729. Equating the terms “government” and “public,” they have opined, would also be inconsistent with language elsewhere in the FCA and with the purpose of the public disclosure bar, which “clearly contemplates that the information be in the public domain in some eapacity[,] and the Government is not the equivalent of the public domain.” Kennard v. Comstock Res., Inc., 363 F.3d 1039, 1043 (10th Cir. 2004). The Second Circuit has not yet opined on this issue. In light of that vacuum, Allergan invites the Court to follow the Seventh Circuit, the sole court of appeals to conclude that disclosure to a competent public figure, without more, satisfies the “public disclosure” requirement. See United States ex rel. Mathews v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. 1999) (holding that disclosure to a government official “authorized to act for or to represent the community on behalf of government can be understood as public disclosure”); see also Cause of Action v. Chi. Transit Auth., 815 F.3d 267, 275-77 (7th Cir. 2016) (declining to reconsider Bank of Farmington). The Court declines that invitation and chooses instead to follow the persuasive reasoning of the nine other Circuits to address the question. That dooms Allergan’s public disclosure argument, as there is no suggestion that Wood’s allegations were public in any form prior to his filing of the first complaint. Instead, Allergan’s argument rests entirely on the proposition that the complaints in Lampkin and Caryatid, although under seal, had previously been disclosed to officials in the federal government. (Docket No. 65 (“Allergan Mem.”) 11; Allergan Reply 6). But a sealed complaint, by definition, does not disclose any information to the “public.” See, e.g., United States ex rel. LeBlanc v. Raytheon Co., 913 F.2d 17, 20 (1st Cir. 1990) (“[T]he district court further assumes that the filing of a qui tam action is itself a ‘public disclosure.’ This cannot be. Such an action is filed under seal without service on anyone other than the United States and remains non-public until the district court enters an order lifting the seal. To hold otherwise would be to render each and every filing a ‘public disclosure,’ thus barring all qui tarn actions.”). Accordingly, Allergan’s reliance on the public disclosure bar is rejected. B. The First-to-File Bar Allergan’s next argument^ — that Wood’s action must be dismissed pursuant to, the FCA’s “first-to-file” bar because, when it was filed, the Lampkin and Caryatid actions were both pending (albeit under seal) — requires a more extended discussion. The bar, codified in Section 3730(b)(5), provides: “When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The core statutory “command is simple: as long as a first-filed complaint remains pending, no delated complaint may be filed.” United States ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1210 (D.C. Cir. 2011). But that simplicity is deceptive. Determining whether the first-to-file bar requires dismissal in the circumstances presented here involves consideration of several complicated issues, at least two of which are the subject of Circuit splits upon which the Second Circuit has not yet opined: whether the first-to-file bar is jurisdictional or non-jurisdictional and (potentially relatedly) whether violation of the first-to-file bar requires dismissal or can be cured through an amended or supplemental pleading under Rule 15 of the Federal Rules of Civil Procedure. 1. Related Actions Of course, the Court need not address those two thorny issues. if, as Wood argues, the Lampkin and Caryatid actions were not “related” to this one within the meaning of Section 3730(b)(5), so the Court begins there. Although the Second Circuit has not yet weighed in, every court of appeals that has addressed the issue has held that “[a] second action is ‘related,’ within'the meaning of the first-to-file bar, if the claims incorporate the same material elements of fraud as the earlier action, even if the allegations incorporate additional or somewhat different facts or information.” United States ex rel. Heath v. AT & T, Inc., 791 F.3d 112, 121 (D.C. Cir. 2015) (internal quotation marks omitted); see United States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 32 (1st Cir. 2009) (citing cases); see also, e.g., United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001) (“Limiting § 3730(b)(5) to only bar actions with identical facts would be contrary to the plain language [of the statute] and legislative intent....”). “The first-to-file bar is designed to be quickly and easily determinably, simply requiring a side-by-side comparison” óf the original complaints in the two actions. In re Natural Gas Royalties, 566 F.3d 956, 964 (10th Cir. 2009); see also United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 328 (5th Cir. 2011) (noting that the inquiry turns on the original complaint, not an amended complaint). Relatedness turns on “whether the later complaint alleges a fraudulent scheme the government already would be equipped to investigate based on the first complaint.” Heath, 791 F.3d at 121 (internal quotation marks and alterations omitted); see also Heineman-Guta v. Guidant Corp., 718 F.3d 28, 37-38 (1st Cir. 2013) (“If the earlier-filed complaint contains enough material facts to alert the government to potential fraud, a later-filed complaint .,. containing the same essential facts ... is nonetheless barred”). Applying this “essential facts” standard, the Court concludes that Lamp-kin was indeed “related” to this action. In Lampkin, the relator explicitly alleged that Allergan violated the AKS by “pa[ying] kickbacks to doctors nationwide in the form of ... free surgical kits that ha[d] greater than nominal value”; that Allergan shipped those kits “nationwide on a monthly basis” as inducement for physi-dans to prescribe Zymar; and that “Compliance with the [AKS] . is a condition of payment under -federal health care insurance programs,” with which providers and suppliers certify their compliance on the CMS Provider/Supplier Enrollment Application Form 855. (See Partridge Decl., Ex. 3 (“Lampkin Compl.”), ¶¶ 14-16, 18). Wood’s later complaint certainly included more detailed allegations, and some different particulars (for example, the time frame of the alleged fraud), but — by any reasonable measure — the claims alleged were based on the same essential facts and involved the same elements of fraud. See, e.g., United States ex rel. Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d 111, 118 (1st Cir. 2014) (“The overlaps among the two complaints were considerable; the same defendants, the same drugs, the assertion of nationwide schemes, and the allegations of specific mechanisms of promotion common to both and leading to common patterns of submission of false claims under the federal Medicaid program.”). Notably, Wood effectively (but perhaps inadvertently) concedes as much, when arguing (in response to Allergan’s contention that his claims are time barred, an issue addressed below) that Allergan “received actual notice of the claims in this case no later than the time that ... [Lampkin was] unsealed in 2012.” (Wood Opp’n 27). Wood’s strongest argument to the contrary is that the AKS and FCA allegations in Lampkin were limited to only one drug (Zymar), while the allegations here relate to additional drugs (Acular and, perhaps, Pred Forte). (Compare Lampkin Complaint ¶¶ 4-5, 19, with Third Am. Compl. ¶¶ 154, 210-213). In support of that argument, Wood cites cases holding that “the drug itself is an essential element of the fraudulent scheme alleged.” United States ex rel. Banigan v. Organon USA Inc., 883 F.Supp.2d 277, 291 (D. Mass. 2012); see also In re Pharm. Indus. Average Wholesale Price Litig., No. 01-CV-12257 (PBS), 2008 WL 2778808, at *3 (D. Mass. July 15, 2008) (finding that “the failure to specify the drug Erythromycin in the earlier action constitutes a failure to state all the essential facts under the ‘same material elements’ standard”). (See Docket No. 109). But those cases did not announce a categorical rule; they merely applied the general proposition that, for purposes of the first-to-file bar, notice to the Government is key. See Banigan, 883 F.Supp.2d at 292 (“[T]he policy underlying the provision counsels that the bar should not apply if the government would uncover such fraud (if at all) only by exhausting its investigative resources.”). That proposition might call for allowing an FCA suit against a pharmaceutical company to proceed notwithstanding an earlier-filed FCA suit against the same company, but involving a completely unrelated drug. See In re Pharma, 2008 WL 2778808, at *3 (“The complaint in the [earlier case] involved different drugs marketed by a different division of Abbott. Significantly, Erythromycin is primarily a self-administered drug and the other drugs are generally administered by physicians. Notice of fraud in one drug’s pricing is not notice of fraud in another drug’s pricing ... because drugs are often marketed, reimbursed, sold, and priced in different ways.”). But it does not defeat the first-to-file bar here, as the complaint in Lampkin was, like the original complaint here, based on the distribution of drugs through surgical care kits. (Lampkin Compl. ¶¶ 14, 16). Whether Allergan unlawfully distributed one drug or more than one drug through those customer care kits is of no moment; either way, the Lampkin Complaint contained “enough material facts to alert the government to [the] potential fraud” alleged here. Heineman-Guta, 718 F.3d at 37-38. Accordingly, as long as Lampkin was a “pending action,” 31 U.S.C. § 3730(b)(5), as it was when Wood filed his original complaint (and first two amended complaints), the first-to-file bar applied. 2. Whether the First-to-File Bar Requires Dismissal The fact that this case is “related” to Lampkin, however, does not end the analysis, because Lampkin was dismissed on December 14, 2012, and, thus, is no longer a “pending action” for purposes of Section 3730(b)(5). Notably, the Supreme Court recently confronted a remarkably similar scenario in Kellogg Brown & Root Services., Inc. v. ex rel. Carter. There, the district court had relied on the first-to-file bar to dismiss an FCA case with prejudice; while the case was on appeal, however, the earlier-filed cases were dismissed. See 135 S.Ct. at 1974-75. In light of that development, the Fourth Circuit reversed and remanded with instructions to dismiss without prejudice, reasoning that the first-to-file bar ceases to apply once the earlier-filed related action is dismissed. The Supreme Court, after addressing an unrelated statute of limitations question, affirmed that ruling. Relying on the “ordinary meaning” of the word “pending” in Section 3730(b)(5) and the slim chance that Congress would have wanted an abandoned suit “to bar a later potentially successful suit that might result in a large recovery for the Government,” the Court held that “an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed.” 135 S.Ct. at 1978-79. It follows that the first-to-file bar poses no obstacle to Wood pursuing his claims today. Allergan concedes that point, but argues that dismissal without prejudice is nonetheless required because no amendment can change the fact that Wood initiated this action while at least one related case was “pending.” (Allergan Mem. 9). By contrast, Wood — perhaps notably, supported by the Government at oral argument— contends that dismissal is unnecessary because filing the Third Amended Complaint after Lampkin was dismissed “cured” the first-to-file defect in his original complaint. (Wood Opp’n 4-8; Tr. at 21-23). Given that any dismissal would be without prejudice to Wood filing a new action, see Carter, 135 S.Ct. at 1978, the parties’ dispute would be academic, but for one critical fact: During the six years in which the Government investigated Wood’s claims and the case remained under seal, the statute of limitations ran on most, if not all, of Wood’s FCA claims, see 31 U.S.C. § 3731(b), so dismissal — even without prejudice — would, for all intents and purposes, largely immunize Allergan from Wood’s claims. Thus, the question of whether a violation of the first-to-file bar can be “cured” by amending or supplementing a complaint — a question left unanswered by the Supreme Court in Carter, see, e.g., United States ex rel. Boise v. Cephalon, Inc., 159 F.Supp.3d 550, 556 (E.D. Pa. 2016) (“The Supreme Court in Carter did not mandate a procedural outcome for second-filed suits whose first-filed counterparts have been dismissed; it only agreed with the Fourth Circuit that the lower court’s dismissal with prejudice was in error.”) — is critical, if not dispositive. Complicating matters, the Second Circuit (consistent with the theme that pervades this Opinion) has not addressed that question, and the federal courts that have addressed it have adopted radically different approaches. The majority have held that the first-to-file bar is jurisdictional and (in part as a result) that violation of the bar is not curable by amendment. See, e.g., United States v. Medco Health Solutions, Inc., No. 11-CV-684 (RGA), 2017 WL 63006, at *12 (D.Del. Jan. 5, 2017); United States ex rel. Palmieri v. Alpharma, Inc., 2016 WL 7324629, at *11-12 (D. Md. Dec. 16, 2016); United States ex rel. Carter v. Halliburton Co., 144 F.Supp.3d 869, 880 (E.D. Va. 2015); United States ex rel. Moore v. Pennrose Props., LLC, No. 11-CV-121, 2015 WL 1358034, at *18 (S.D. Ohio Mar. 24, 2015); United States ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 782 F.Supp.2d 248, 259 (E.D. La. 2011). At least one district court has held that, while the rule is non-jurisdictional, its violation is still not curable by amendment. See United States ex rel. Shea v. Verizon Commc’ns, 160 F.Supp.3d 16, 28-30 (D.D.C. 2015). And still others (including the only circuit court to weigh in) have held that, whether or not the rule is jurisdictional, its violation can be cured by the filing of an amended or supplemental complaint if, as here, the first-filed action is no longer “pending.” See, e.g., United States ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 3 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 2517, 195 L.Ed.2d 859 (2016); United States ex rel. Brown v. Pfizer, Inc., No. 05-CV-6795 (RBS), 2016 WL 807363 (E.D. Pa. Mar. 1, 2016); United States ex rel Kurnik v. PharMerica Corp., No. 11-CV-1464, 2015 WL 1524402, at *6 (D.S.C. Apr. 2, 2015); Cephalon, 159 F.Supp.3d at 558; United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 157 F.Supp.3d 1311 (N.D. Ga. 2015). Based on a careful review of the FCA’s text, structure, and. purpose, the Court concludes that Wood and the Government have the better of the argument and that a violation of the first-to-file bal-ean be cured by amending or supplementing the complaint after the first-filed action has been dismissed. As an initial matter, the Court agrees with the D.C. Circuit that the first-to-file bar is not jurisdictional. See Heath, 791 F.3d at 119-20. Admittedly, the majority of Circuits have ruled otherwise. See, e.g., Gadbois, 809 F.3d at 3; United States ex rel. Carter v. Halliburton Co., 710 F.3d 171, 181 (4th Cir. 2013); Walburn, 431 F.3d at 970. In recent years, however, the Supreme Court has stressed the need to bring “some discipline to the use of the term jurisdiction[al],” and has repeatedly held that, absent a “clear statement” from Congress, courts “should treat” procedural restrictions “as nonjuris-dictional.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) (internal quotation marks omitted); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct, 641, 648, 181 L.Ed.2d 619 (2012); Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). As the D.C. Circuit observed in Heath, the language of the first-to-file bar “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” 791 F.3d at 120 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). What is more, other provisions of the FCA do refer explicitly to, jurisdiction and thus make plain that Congress knew how to expressly distinguish between jurisdictional and non-jurisdictional rules. See, e.g,, 31 U.S.C. § 3730(e)(1) (“No court shall have jurisdiction over an action brought by a former or present member of the armed forces,..,”); id. § 3730(e)(2)(A) (“No court shall have jurisdiction over an action brought ... against a Member of Congress, a member of the judiciary, or a senior executive branch official:...”); see also, e.g., Nken v. Holder, 556 U.S. 418, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). Other considerations bolster the conclusion that “the first-to-file rule bears only on whether a qui tarn plaintiff has properly stated a claim,” rather than on the scope of courts’ jurisdiction. Heath, 791 F.3d at 121. First, the Supreme Court has repeatedly held that “[t]he requirement that jurisdiction be established as a threshold matter ... is inflexible and without exception.” Steel Co. v. Citizens far Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks omitted). Thus, the Supreme Court itself is “require[d]” to “address questions pertaining to its or a lower court’s jurisdiction before proceeding to the merits.” Tenet v. Doe, 544 U.S. 1, 6 n.4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005). In Carter, however, the Supreme Court examined the import of the first-to-file bar for the relator’s claims only after the Court had decided a non-jurisdictional statute of limitations question impacting those claims. See 135 S.Ct. at 1978-79. Second, as a general proposition, plaintiffs must establish jurisdiction and federal courts must satisfy themselves at the outset of a case that they have jurisdiction. See, e.g., Steel Co., 523 U.S. at 94-95, 118 S.Ct. 1003. But, because FCA cases are initially filed under seal and can remain under seal for years, there are likely to be many cases — like this one — in which neither the relator nor the court is in a position to know about an earlier-filed action. (In Carter, for example, the parties and the district court learned about the earlier-filed action only “shortly before trial.” 135 S.Ct. at 1974.) If the first-to-file rule were jurisdictional — even if it were curable through amendment or supplementation — the result could be problematic, raising questions about whether actions taken by the court while the earlier-action was (unbeknownst to the court) pending are retroactively null and void. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-35, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (noting that “[ojbjec-tions to subject-matter jurisdiction ... may be raised at any time,” even by the losing party after trial); see also, e.g., Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868) (“Jurisdiction is power to declare the law, and when it ceases to exist, the .only function remaining to the court is that of announcing the fact and dismissing the cause.”). The more sensible approach, supported by the language and structure of the FCA, is to treat the first-to-file rule as a non-jurisdictional (albeit .mandatory) rule. See generally Scott Dodson, Mandatory Rules, 61 Stan. L. Rev. 1, 9 (2008) (discussing mandatory non-jurisdictional rules). Significantly, most of the courts to hold that a first-to-file rule violation cannot be cured have rested heavily, if not primarily, on their view that the rule is jurisdictional in nature and the “hornbook” principle that “jurisdiction ... depends upon the state of things at the time of the action brought.” Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); see, e.g., Medco Health, 2017 WL 63006, at *12 (“[T]he court finds that the reasoning of cases allowing amendment to cure a jurisdictional defect under the first-to-file bar is not persuasive.”); Halliburton, 144 F.Supp.3d at 880 (“In this Circuit, the first-to-file bar is jurisdictional. It is consistent with a jurisdictional limitation to apply the first-to-file bar at the time the initial complaint is filed, rather than when the complaint is amended.” (citation omitted)); accord Palmieri, 2016 WL 7324629, at *12; Pennrose Props., 2015 WL 1358034, at *12; Allstate Ins. Co., 782 F.Supp.2d at 259. That hornbook princi-pie does not apply to non-jurisdictional rules, even those that explicitly call for looking at the circumstances as of the time of filing. To the contrary, courts routinely allow plaintiffs to cure violations of such rules by filing amended or supplemental complaints pursuant to Rule 15, See generally 6 Wright & Miller, Fed. Prac. & Proc. Civ., § 1474 (3d ed.) (noting “the most common use of Rule 15(a) is by a party seeking to amend in order to cure a defective pleading” and listing a wide range of permissible amendments, which courts “liberal[ly]” construe to further “the basic objectives of the federal rules,” that is, “the determination cases on their merits”); id. § 1505 (listing a wide variety of permissible purposes for supplementation and noting that Rule 15(d) was revised specifically to make clear that courts have “discretion to allow a supplemental pleading even though the original pleading is defective in stating a claim or defense” (internal quotation marks omitted)); see also, e.g., Klinger v. Corr. Corp. of Am., No. 11-CV-2299, 2012 WL 6200393, at *10 (N.D. Ohio Oct. 23, 2012) (“Plaintiffs subsequent appointment as personal representative for his father’s estate as alleged in the Fourth Complaint, relates back to the date of the filing of the Complaint under Rule 15(c)(1)(B). This amendment cures the defect regarding Plaintiffs capacity to sue and preserves the estate’s wrongful death claims against [the defendants].”); Woods v. State of Mo. Dep’t of Mental Health, 581 F.Supp. 437, 439 (W.D. Mo. 1984) (granting leave to amend to cure an Eleventh Amendment defect raised in the deféndant’s motion to dismiss because “allowing the amendment would .not result in prejudice to [the] defendant but a denial would cause plaintiff significant hardship since his [civil rights claims] . would be dismissed”). Thus, stripped of its jurisdictional trappings, the first-to-file rule poses a far less formidable barrier to allowing cure through amendment than many courts have assumed. Second, and in any event, the structure and purpose of the FCA generally, and the first-to-file rule specifically, call for allowing a relator in Wood’s circumstances to avoid dismissal by amending or supplementing his complaint. There can be no dispute that the primary purpose of the FCA is to permit the Government to recover for fraud inflicted upon it. See Cook County, Ill. v. United States ex rel. Chandler, 538 U.S. 119, 129-35, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003). The “most obvious indication” of that purpose is the statute’s qui tam provisions, which “quicken the self-interest of some private plaintiff who can spot violations and start litigating to compensate the Government, while benefitting himself as well.” Id. at 131, 123 S.Ct. 1239. At the same time, Congress has long sought to eliminate “parasitic lawsuits” and discourage “opportunistic plaintiffs who have no significant information to contribute of their own.” United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994). Driven primarily by the latter concern, Congress clamped down on qui tam suits in 1943. See, e.g., Pettis ex rel. United States v. Morrison-Knudsen Co., 577 F.2d 668, 671 (9th Cir. 1978). But after concluding that those reforms shifted the pendulum too far in the other direction, Congress amended the Act again in 1986, adding both the first-to-file bar and the public disclosure bar. See Springfield Terminal Ry. Co., 14 F.3d at 650-51; United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 234 (3d Cir. 1998). The “primary purpose” of the 1986 amendments “was to shift the advantage back to the government in the fight against fraud.” Id. at 233-34 (internal quotation marks omitted); see also United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725 (10th Cir. 2006) (“The purpose in amending the FCA was ‘not only to provide the Government’s law enforcers with more effective tools, but to encourage any individual knowing of Government fraud to bring that information forward.’” (quoting S. Rep. No. 99-345, at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5266-67)). More broadly, the amendments also “sought to achieve the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.” LaCorte, 149 F.3d at 234 (internal quotation marks omitted). Ignoring Congress’s primary intent to aid the Government in fighting fraud, Allergan contends that the first-to-file rule “is intended to ‘prevent the filing of more qui tam suits once the government already has been made aware of the potential fraud’ ” and to “discourage ... parasitic lawsuits that merely feed off previous disclosures of fraud.” (Allergan Mem. 8 n.6 (quoting United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 517 (6th Cir. 2009), and Branch Consultants, 560 F.3d at 376)). That contention does find some support in the case law. But to the extent that an earlier-filed qui tam suit remains under seal, the rule does little or nothing to prevent the filing of more suits; after all, later relators and courts (as in this case) will not know of the earlier-filed suit until it is unsealed and, thus, will not be “prevent[ed]” from filing suit. And to the extent that the earlier-filed suit is no longer under seal, the public disclosure bar will generally serve to prevent parasitic lawsuits that merely feed off the earlier-filed suit. As the Tenth Circuit has explained, “[t]he public disclosure bar already [bars] suits brought by relators who simply- feed off another relator’s complaint and offer no useful information to government officials who should already be on notice of the fraud. Applying that standard to the first-to-file bar will do no more to weed out opportunistic relators than the public disclosure bar already does.” In re Natural Gas Royalties, 566 F.3d at 963. In light of the sealing requirement for newly filed qui tam suits and the public disclosure bar, therefore, it is hard to see what work the first-to-file rule does in combating parasitic or opportunistic lawsuits, Nor, in light of the fact that it ceases to apply if the earlier-filed action is dis-misséd, does the rule necessarily shield the Government from being notified of the same fraud more than once. After all, [wjhile filing the complaint might put the government on notice, and while the government may remain on notice while the action is pending, the government does not cease to be on notice when a relator withdraws his claim or a court dismisses it. And yet, if that prior claim is no longer pending, the first-to-file bar no longer applies. Id. at 964. The text and structure of the statute thus suggest that the primary, if not sole, purpose of the first-to-file rule is to help the Government uncover and fight fraud. That is, it “vindicates the goal of encouraging relators to file; it protects the potential award of a relator while his claim remains viable, but, when he drops his action, another relator who qualifies ... may pursue his own.” Id.; see also, e.g., Campbell v. Redding Med. Center, 421 F.3d 817, 821 (9th Cir. 2005) (stating that the “first-to-file bar .,. encourages prompt disclosure of fraud by creating a race to the courthouse among those with knowledge of fraud”); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir. 2004) (“[0]riginal qui tam rela-tors would be léss likely to act on the government’s behalf if they had to share in their recovery with third parties who do no more than tack on additional factual allegations to the same essential claim.”). Viewing the first-to-file rule in that light, it is plain that barring, a relator in Wood’s position from curing his violation of the rulé would undermine, rather than advance, the purposes of the FCA. For one thing, it would diminish the incentive for any relator with valuable information to file suit, as she would have to discount the probability of laying exclusive claim to any spoils by the risk that, unbeknownst to her, someone else had beaten her to the courthouse door. For another, where, as here, a case remains sealed for an extended period of time, it could result in the relator’s claims being precluded by either the public disclosure bar or the statute of limitations — through no fault of his own. See, e.g., Medco Health, 2017 WL 63006, at *12 n.14 (noting that- “dismissal and refiling would not be a pointless formality, because it would raise further defenses, including the fact that [the earlier-filed suit] would now be an additional enumerated source under the public disclosure bar” and the statute of limitations). That would not only frustrate Congress’s goal of helping -the Government fight fraud, but it would also provide a windfall to defendants in Allergan’s position — a particularly perverse outcome, as nothing in the text or history of the first-to-file rule suggests that it was intended to benefit FCA defendants, as opposed to the'conscientious relator and, by extension, the Government. All of which points to a question posed by the Supreme Court in Carter: “Why would Congress want the abandonment of an earlier suit to bar a later potentially successful suit that might result in a large recovery for the Government?” 135 S.Ct. at 1979. The answer is that it would not. In the final analysis, the strongest— perhaps the only — support for Allergan’s view that a violation of the first-to-file requires dismissal without prejudice is the plain language of the statute. As the. Shea Court reasoned: “The first-to-file bar prohibits bringing a ‘related action,’ not a related complaint..., No matter how many times [a later-filing relator] amends his Complaint, it will still be true that he *br[ought] a related action based on the facts underlying the [then] pending action.’” 160 F.Supp.3d at 30 (emphasis omitted). Admittedly, that reasoning is not without force — as the Supreme Court recently reaffirmed, “courts must give effect to the clear meaning of statutes as written.” Star Athletica, L.L.C. v. Varsity Brands, Inc., — U.S. -, 137 S.Ct. 1002, 1010, 197 L.Ed.2d 354 (2017). But the plain language here gets one only so far. That is, it may compel the conclusion that Wood violated the first-to-file rule by filing this action when Lampkin was “pending,” but it does not necessarily follow that dismissal is now the required remedy for that violation given that the rule “ceases to bar” a suit “once [the earlier-filed suit] is dismissed.” Carter, 135 S.Ct. at 1978. In other words, neither the plain language of Section 3730(b)(5) nor the Supreme Court’s decision in Carter answers the procedural question of what do when, as here, a relator unwittingly violated the first-to-file bar, but the bar no longer applies. See, e.g., Cephalon, 159 F.Supp.3d at 556 (“The Supreme Court in Carter did not mandate a procedural outcome for second-filed suits whose first-filed counterparts have been dismissed; it only agreed with the Fourth Circuit that the lower court’s dismissal with prejudice was in error.”); see also, e.g., Medco Health, 2017 WL 63006, at *11 (observing that “Carter did not resolve” the “procedural” issue of what to do where “a first-filed action was pending at the time the second action was filed, but is no longer pending”). In sum, the Court concludes (1) that the first-to-file rule is non-jurisdictional and (2) in light of that, as well as the text, purpose, and structure of the FCA, that a violation of the rule is curable through the filing of an amended or supplemental complaint after the earlier-filed action was dismissed. Here, Wood did just that, as he filed the Third Amended Complaint on May 23, 2016, after Lampkin (and Caryatid) had been dismissed. Under these circumstances, “it would be a pointless formality” to dismiss the action. Gadbois, 809 F.3d at 6. In fact, it would be worse than a pointless informality, as it Would — in light of the passage of time— effectively immunize Allergan from liability for what the Court must assume here was fraud. For the reasons stated above, the Court concludes that the law does hot require that perverse result. C. Statute of Limitations Before 'turning to the substance of Wood’s FCA cláims, one last thorny procedural issue remains: whether and to what extent those claims are time barred. The FCA’s statute of limitations is set forth in Section 3731(b), which provides as follows: (b) A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of Section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b). Ordinarily, the statute of limitations is “an affirmative defense that must be raised in the answer.” Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014). It is well established, however, t