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Federal Bar Association Qui Tam Conference Highlights Developments in False Claims Act Enforcement

The Federal Bar Association recently hosted its annual Qui Tam Conference, bringing together panelists and attendees from the government, relators’ bar and the defense bar to analyze developments in the False Claims Act (FCA) enforcement arena.  Several distinguished speakers presented at the panel, including Joseph H. (Jody) Hunt, Assistant Attorney General - DOJ Civil Division, and Michael Granston, Deputy Assistant Attorney General – DOJ Civil Division. 

Jody Hunt spoke about the Department’s FCA enforcement priorities, especially in the healthcare area, noting that the department remains focused on cases that recover misused taxpayer dollars as well as cases that protect the dignity of at-risk populations, such as nursing home patients. Mr. Hunt also commented on the “Granston memo”, noting that “much ink has been spilled” despite the relatively small number of cases that have been dismissed based on the principles outlined in the memo and implemented at DOJ Manual Section 4-4.111.  Mr. Hunt discussed the new “cooperation credit” policy, implemented at DOJ Manual Section 4-4.112, and explained the various factors that the Department will take into account when determining whether to grant cooperation credit to FCA defendants.  Mr. Hunt indicated that the cooperation credit policy should act as an incentive, and that future defendants should take notice and advantage of the opportunities therein.

On the second day of the conference, Michael Granston spoke to the attendees, in an interview covering a wide range of hot topics.  Responding to many of the interview questions focusing on Mr. Granston’s memo – which he referred to as “the dismissal memo” – Mr. Granston echoed Mr. Hunt in pointing out the relatively low percentage of cases that have been dismissed under the memo and corresponding policy.  According to Mr. Granston, the goal of the memo was to make sure that DOJ attorneys were aware of the possible bases for dismissal under 31 U.S.C. § 3730(c)(2)(A).  In comments that generated substantial discussion, Mr. Granston responded to a question about whether the Department should share claims data with relators after declining to intervene by noting that the Department should attempt to “act like a third party so it will be treated like a third party.”  Mr. Granston also expressed his view on one of the changes resulting from the 2010 amendments to the FCA’s public disclosure bar, namely the addition of the language “unless opposed by the government.”  31 U.S.C. § 3730(e)(4)(A).  Mr. Granston explained that, in his view of the amended language, the Government’s power to oppose a public disclosure bar motion was a “mirror image” of its dismissal power under 31 U.S.C. § 3730(c)(2)(A).  In other words, the Government should have a valid basis for opposing dismissal based on the public disclosure bar, and the Government may offer either merit-based or other factors to support its opposition.

To learn more about insights learned from the Qui Tam Conference, or to inquire about False Claims Act issues generally, please contact: 

Cormac T. Connor, Member
Email: cconnor@smithpachter.com

John S. Pachter, Member
Email: jpachter@smithpachter.com 

Julia S. Shagovac, Associate
Email: jshagovac@smithpachter.com 

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