Making The Granston Memo Work For FCA Defendants

It has been a little over a year since the leaking of the infamous Granston memo, an internal U.S. Department of Justice memorandum that provides guidance to government attorneys on when to exercise their authority to invoke Section 3730(c)(2)(A) of the False Claims Act, a previously rarely used provision that permits the government to dismiss cases even over the relator's objections. The Granston memo initially generated a lot of industry buzz about what it would mean for the future of FCA litigation.

Since then, the DOJ has incorporated the Granston memo policy into the DOJ Justice Manual and has already put the policy into practice. After the leaking of the memo, the DOJ filed at least 18 motions to dismiss based on Section 3730(c)(2)(A) in 2018 — a marked increase over prior years. These motions shine a light on what defense counsel should do and how to do it in cases that merit Granston memo consideration.

Originally published in Law360 on March 4, 2019.

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