In January, two memoranda—one authored by then-U.S. Associate Attorney General Rachel Brand and the other by civil fraud chief Michael Granston—suggested there should be a new hope for industry-friendly changes to the U.S. Department of Justice’s view of the False Claims Act. The “Granston memo,” which although marked as confidential was promptly leaked, counseled DOJ attorneys to consider dismissing non-intervened qui tam cases that are weak or raise certain policy concerns. The “Brand memo” instructed Justice Department lawyers not to use putative violations of agency guidance documents as a basis for FCA cases.

Some in industry and the defense bar lauded these memoranda as harbingers of less aggressive FCA enforcement under the Trump administration. That outlook is doubtful, given that the Justice Department virtually self-funds through the billions a year money generated by FCA recoveries. While these memoranda may spruce things up for spectators like most window dressing, underneath the incentives that drive vigorous enforcement remain unchanged.

The Granston Memorandum

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