False Claims Act: Greater DOJ Scrutiny of Frivolous Qui Tam Actions?

Abstract

This short piece discusses recent (internal) Justice Department guidance for attorneys handling False Claims (FCA) Act cases. In a dramatic policy and practice shift, the memorandum recommends that “when evaluating a recommendation to decline intervention in a qui tam action, attorneys should also consider whether the government’s interests are served... by seeking dismissal pursuant to 31 U.S.C. § 3730(c)(2)(A).”

The essay applauds DOJ's apparent acknowledgement that its attorneys have more than a pro forma duty to consider moving to dismiss frivolous qui tam suits. The essay discusses DOJ's new rubric or menu of factors for deciding whether to dismiss cases. The essay expresses hope that the new policy might reduce longstanding concerns that there are too many qui tam suits that find their way into the federal court system even after the DOJ has determined that the cases lack merit. Ultimately, the essay concludes that, if the DOJ pulls the plug on any appreciable number of frivolous qui tam matters, that would offer a welcome respite for government contractors and the health care industry.

Keywords: False Claims Act, Qui Tam, Relators, Fraud, Government Contracts, Defense Acquisition, Department of Justice, Frivolous Claims, Gate-Keeping Function, Moral Hazard

JEL Classification: H57, H83, K23, K41, K42, L14