Defense Attorneys Examine "Circuit Split" on False Claims Act Dismissals

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August 22, 2018

In a Law360 analysis piece, two defense attorneys from Wiley Rein LLP examine the growing circuit split on the U.S. Department of Justice’s authority to dismiss False Claims Act lawsuits in light of its January Granston memo.

The Granston memo directs U.S. attorneys to dismiss “meritless” qui tam lawsuits brought under the False Claims Act. However, attorneys Nicholas Peterson and Madeline Cohen note that some courts, like the Fifth, Eleventh, and D.C. Circuits, say the government “has the unilateral power” to dismiss these claims while others, like the Ninth and Tenth Circuits, require the government to show “that a valid purpose exists.”

Peterson and Cohen say these competing dynamics offer differing strategies for defendants looking for dismissals. The memo also gives defendants “an opportunity to pitch dismissal” even if the government “declines to intervene.”