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“Granston Memo” May Signal New Direction for Government in Qui Tam Cases

The U.S. Department of Justice (DOJ) has circulated an internal memo signaling that it may intervene—by seeking dismissal—in more lawsuits brought under the federal False Claims Act’s (FCA) qui tam provisions. Those provisions allow “whistleblowers” to file suit on the government’s behalf and receive a portion of damages. They are aimed at reining in fraud involving government programs such as Medicaid.

The January 10 memo, authored by Michael Granston, director of the DOJ’s Commercial Litigation Branch Fraud Section, is titled “Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A).”

The memo notes that the DOJ frequently opts for non-intervention rather than dismissal, but that given the growing number of qui tam filings and the DOJ’s limited resources (non-intervened cases, because of monitoring and discovery costs, still can be expensive) the latter should be given greater consideration. Dismissal also should be considered because when cases “lack substantial merit, they can generate adverse decisions that affect the government’s ability to enforce the FCA,” the DOJ memo says.

DOJ lists seven factors that should be reviewed when considering dismissal under 3730(c)(2)(A): curbing meritless qui tam filings; preventing parasitic or opportunistic qui tam actions; preventing interference with agency policies and programs; controlling litigation brought on behalf of the United States; safeguarding classified information and national security interests; preserving government resources; and addressing egregious procedural errors.

Although the Granston memo’s potential effects are difficult to predict, it potentially could bolster defense attorneys representing individuals and companies charged with violating the FCA. They could argue to the DOJ and courts that the claim before them should be dismissed based on one or more of the factors above.

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