On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum significantly restricting Department of Justice (“DOJ” or “the Department”) civil litigating units’ use of executive agency guidance documents in affirmative civil enforcement actions (the “Brand Memo”). The Brand Memo outlines new policies for cases in which an executive agency previously issued relevant non-binding guidance, including:

..Reinforcing the long-standing principle that guidance documents are just that—recommendations for regulated industries;

..Emphasizing that guidance does not bind regulated parties or create new legal obligations beyond the scope of existing statutes and regulations;

..Precluding the Department from “effectively convert[ing] agency guidance into binding rules”; and...