Washington, D.C., partner Jesse Witten commented on a memo released by the Department of Justice (DOJ) that details the circumstances in which the government should consider dismissing False Claims Act cases brought by whistleblowers. In the Law360 piece “Attorneys React to DOJ's New Memo on FCA Dismissals,” Jesse observed that:
The memo is a long-overdue exercise of good government. While many qui tam actions have merit, others are frivolous or are filed for improper reasons. The memo does not explicitly encourage DOJ lawyers to dismiss qui tam actions, but that is the obvious implication. The Trinity Industries Inc. case illustrates why the memo was necessary. In Trinity, the U.S. Department of Transportation provided a statement that the relator claims were unfounded and that the defendant was entitled to the payments it received. Nonetheless, the district court allowed the case to proceed and the relator obtained a $663 million judgment. The Fifth Circuit reversed, relying on the DOT statement. It would have been far better if the government had dismissed the case at the outset.