New Internal Policy Instructs U.S. DOJ Lawyers to Seek Dismissal of Meritless FCA Qui Tam Actions

The U.S. Department of Justice (“DOJ”) has implemented a new policy that requires DOJ lawyers to potentially seek dismissal of arguably meritless actions filed under the U.S. False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. On January 10, 2018, Michael Granston, Director of the Fraud Section of the Commercial Litigation Branch at the DOJ, issued an internal memorandum (available here) outlining several factors prosecutors should take into account in determining whether to seek dismissal of qui tam actions filed under the FCA (the “Granston Memo”).

The Granston Memo represents a significant statement of DOJ policy, and signals a potential increased willingness for the DOJ to not merely decline to intervene in weak FCA suits, but to affirmatively seek their dismissal. At the very least, the Granston Memo will provide companies and other qui tam defendants with guidance regarding when the DOJ may be willing to dismiss qui tam complaints that arguably have no merit.

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