The Granston memorandum released in early 2018 caused a stir amongst False Claims Act qui tam relators and defendants alike. The practical effects of the Granston memo, however, are not yet fully apparent. Defendants in FCA suits should nonetheless take note that following the release of the Granston memo, the Department of Justice has doubled-down on the importance of its dismissal power.
Leveraging the Government’s Position
One issue the Granston memo raises is whether defendants can leverage the government’s dismissal power in qui tam suits pursuant to seek dismissal pursuant to 31 U.S.C. § 3730(c)(2)(A). Two months after the Granston memo’s release there is some indication that it may have a positive effect on dismissals. Deputy Associate Attorney General Stephen Cox delivered confirming remarks at the Federal Bar Associations Qui Tam Conference on February 28, 2018:
On this front, I know that we at the Department of Justice remain cognizant that our role is to enforce the rule of law as enacted by Congress and interpreted by courts and avoid any attempts to push the envelope by seeking to regulate through our enforcement efforts. . . .
You may have heard about the Granston Memo, which contains internal guidelines for our litigators in determining when it is appropriate to exercise our dismissal authority. This authority is an important tool to protect the integrity of the False Claims Act and the interests of the United States. . . .
The government takes its responsibility seriously, and we will use our dismissal authority where necessary to protect the long-term interests of both the government and relators in maintaining a vigorous and effective False Claims Act.
The Granston memo and DAAG Cox’s speech provide guidelines defendants should follow to encourage government intervention to dismiss claims. Given the government’s concern with volume of cases, defendants should raise issues early with both the court in seeking dismissal and the United States Attorney’s Office handling the case.
In particular, defendants should shape the necessary arguments for the USAO to determine the claims are meritless or opportunistic claims, that dismissal would preserve government resources for meritorious cases, and that cases where there is a lack of provable harm to the government should be dismissed. There is ample opportunity for defendants to leverage the government’s concern to obtain the benefit of a dismissal by performing the legwork required to obtain a dismissal from the USAO.