On January 27, 2020 Deputy Associate Attorney General Stephen Cox provided keynote remarks at the 2020 Advanced Forum on False Claims and Qui Tam Enforcement. He began by discussing enforcement and recent cases, emphasizing that enforcing the False Claims Act (FCA) is a top priority for the Department of Justice (DOJ). In the past fiscal year, DOJ recovered over $3 billion, and $2.6 billion of that came from suits involving the health care industry.
He then discussed how the FCA relates to DOJ’s regulatory reform agenda. He discussed qui tam dismissals and noted that under the “Granston Memo,” the DOJ has instructed its attorneys to consider filing motions to dismiss under 31 U.S.C. § 3730(c)(2)(A) when they are not in the government’s best interests. He also discussed the “Sessions Memo” and the “Brand Memo.” These memos stated that DOJ would no longer engage in the practice of rulemaking by guidance, and would not use its enforcement authority to essentially convert other agencies’ sub-regulatory guidance into rules that have the force or effect of law. He also discussed coordination with agencies, stating that it is unnecessary and overreaching for multiple law enforcement and regulatory agencies to pile onto a single entity for the same or substantially similar conduct, by imposing unwarranted and disproportionate penalties for that conduct. Finally, he discussed the DOJ’s cooperation credit policy announced in May 2019, whereby corporate defendants can earn credit in FCA matters — and a reduction in penalties and damages — by voluntarily disclosing misconduct, cooperating with government investigations, and taking remedial measures such as improving corporate compliance programs.
The full remarks as prepared for delivery can be found at https://www.justice.gov/opa/speech/deputy-associate-attorney-general-stephen-cox-provides-keynote-remarks-2020-advanced. There is a detailed discussion of these DOJ Memos at https://wirskyelawfirm.com/blog/.