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New DoJ policies favor corporate defendants

Jaclyn Jaeger | February 27, 2018

The Department of Justice has issued a trio of memoranda in recent weeks that collectively lean in favor of companies facing whistleblower complaints or civil enforcement cases.

Broadly speaking, the three recently issued memoranda signal that the Department of Justice aims to limit the scope and pursuit of False Claims Act (FCA) cases and aggressive legal theories currently being employed by prosecutors. Concurrently, one of the memos further signals that prosecutors may start to take a more aggressive approach toward dismissing whistleblower complaints alleging FCA violations.

In November 2017, Attorney General Jeff Sessions issued a memorandum prohibiting the Justice Department from issuing guidance documents that “purport to create rights or obligations” binding outside the Executive Branch. Under the Administrative Procedure Act, a rule cannot take effect without undergoing a notice-and...

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