The recent leak of an internal U.S. Department of Justice (DOJ or Department) memorandum setting forth considerations for dismissal of civil cases brought under the False Claims Act (FCA) offers helpful guidance not only to DOJ lawyers handling qui tam cases, but also to defense counsel representing companies alleged to have violated the FCA. The memorandum, dated January 10, 2018, and authored by Michael D. Granston, Director of the DOJ Commercial Litigation Branch, Fraud Section, is addressed to all attorneys in that branch as well as to all Assistant U.S. Attorneys handling FCA cases across the country. The Granston Memo observes that the dramatic increase in the filing of qui tam suits has not been mirrored by a proportional increase in the government's intervention in those cases. For a variety of reasons—among them, the resources DOJ expends on monitoring and discovery even in instances where DOJ does not intervene, and the potential for adverse precedent—the Granston Memo directs that, despite DOJ's historical reluctance to do so, its lawyers should consider affirmatively seeking dismissal, as the FCA permits under 31 U.S.C. § 3730(c)(2)(A).

Originally published in American Health Lawyers Association, Washington, DC. - February 9th, 2018.