You Win Some, You Lose Some: Recent FCA Litigation Developments

Nicholas C. Harbist and Lauren E. O’Donnell

This article explores two recent developments in False Claims Act (“FCA”) litigation—one that should provide reassurance to potential FCA defendants, and one that may trouble them.

Government Dismissals of FCA Cases 

In January 2018, Michael Granston, the Department of Justice (“DOJ”) civil fraud chief, issued a memorandum on FCA case dismissals (the “Granston Memo”). As previously discussed in our April 2018 article, False Hope for False Claims Act Defendants? Government Dismissals of Qui Tam Cases May Increase, the Granston Memo provided guidance to DOJ lawyers about when they should dismiss FCA cases. Historically, such dismissals have been rare. In fact, a 2013 study by Stanford Law School professor David Freeman Engstrom concluded that since 1986, the government had uni­laterally dismissed only 30 of 4,000 unsealed whistleblower FCA complaints.

Since the Granston Memo was issued, the government has already advocated for the dismissal of three FCA cases. The first case is pending before the U.S. Supreme Court, Gilead Sciences Inc. v. U.S. ex rel. Jeffrey Campie et al., 17-936. At the end of November, the DOJ filed an amicus brief indicating that it will move to dismiss the case if it is sent back to the district court, as “continued prosecution of the suit is not in the public interest.” The DOJ explained that it is concerned about both parties making “burdensome” requests for Food and Drug Administration (“FDA”) documents and testimony if the case proceeds. According to the DOJ, such requests would distract from the FDA’s public health responsibilities. As the DOJ wrote, “The government has concluded that allowing this suit to proceed to discovery (and potentially a trial) would impinge on agency decisionmaking and discretion and would disserve the interests of the United States.” Continue reading “You Win Some, You Lose Some: Recent FCA Litigation Developments”