Harold Malkin authored a February 1 Law360 article titled "DOJ Has New Policy On FCA Dismissals — Finally." The article discusses the news — much welcomed by the defense bar — of a recent Department of Justice (DOJ) memorandum articulating factors under which it will consider seeking to dismiss suits brought by ostensible whistleblowers under the False Claims Act (FCA). Before now, DOJ has only sought to dismiss whistleblower claims in extremely rare circumstances.
Regardless of the reason for the DOJ’s willingness to more regularly consider moving to dismiss declined qui tam cases, the change in policy — and there’s no denying it’s a change in policy — is welcome news. It always seemed unconscionable (even from the perspective of a former trial attorney and AUSA) to require defendants who succeeded in persuading the DOJ that a qui tam was meritless enough to warrant declination to then be forced to defend themselves anew against the relator in court.
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