Recently, various news outlets have breathlessly reported that the Department of Justice (DOJ) has pledged to ramp up its dismissal of “meritless” False Claims Act (FCA) cases filed by whistleblowers, rather than allowing those whistleblowers to pursue cases independently and without government assistance. However, these reports seem to ignore the other half of the story, which is that the DOJ has also signaled that it will more aggressively harness the power of private law firms in cases that may have merit. In other words, the focus on declined “meritless” cases ignores the government’s move towards identifying meritorious cases that are appropriate for prosecution by lawyers in private practice. Rather than celebrate the former, companies that defraud the government should take notice of the later.
During a recent speech, Michael Granston, Director of Civil Frauds at the DOJ, stated that the government will “continue to look critically at qui tam cases to determine whether there are matters that should be dismissed.” Mr. Granston went on to explain that allowing “meritless” cases to proceed can be a drain on DOJ’s resources, as the department continues to monitor declined cases and will weigh in with Statements of Interest whenever it believes a party is misstating the law or running the risk of an adverse ruling that might compromise future cases. At the same time, though, DOJ officials have also noted that the department intends, as part of its intervention/declination decision making process, to consider declining cases when it concludes that the private law firm that brought the case can effectively handle and continue to litigate it.
For law firms committed to seriously vetting and investigating their qui tam claims before filing, these statements from the DOJ should not be any cause for alarm. If anything, it is encouraging to see the DOJ recognize that top-notch whistleblower firms are its allies, and that the government can significantly leverage its resources by deferring to private practitioners to pursue worthy cases.
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