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DOJ Implements New Policies for DOJ FCA Litigators

Qui tam attorney calls on DOJ Inspector General to closely monitor the incentives given to FCA defendants

Washington, D.C. May 8, 2019. In a statement issued yesterday, the Department of Justice (DOJ) Civil Division announced the release of formal guidance to the DOJ's False Claims Act litigators.

"The Department of Justice has taken important steps to incentivize companies to voluntarily disclose misconduct and cooperate with our investigations; enforcement of the False Claims Act is no exception," Assistant Attorney General Jody Hunt said. 

"False Claims Act defendants may merit a more favorable resolution by providing meaningful assistance to the Department of Justice – from voluntary disclosure, which is the most valuable form of cooperation, to various other efforts, including the sharing of information gleaned from an internal investigation and taking remedial steps through new or improved compliance programs."

The DOJ guidance contains two significant updates:

  1. The clarification of incentivizing companies and individuals that discover false claims to disclose them voluntarily to the government. Entities or individuals that make proactive, timely, and voluntary self-disclosure to the Department about misconduct will receive credit during the resolution of an FCA case.
  2. Specific guidance to the DOJ's FCA litigators on when to seek dismissal of an FCA case over the objection of a whistleblower.

Top qui tam attorney Stephen M. Kohn, a partner at Kohn, Kohn & Colapinto and Chairman of the Board of the National Whistleblower Center, urged the need for oversight of these new policies. 

"The policies enacted by the DOJ are a double-edged sword. If implemented in good faith they are consistent with the goals that whistleblowers share with the government. However, as with any policy that reduces penalties from those who have contributed to fraud, they are vulnerable to favoritism, insider dealing and abuse. The DOJ must have strict safeguards in place to ensure that these new policies don't amount to a get out of jail card for the fraudsters,” said Kohn.

"The DOJ Inspector General must carefully audit the implementation of these policies. Furthermore, whistleblowers should not be shy to expose any duplicitous conduct of the government," Kohn warned.

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The Whistleblower Blog is an editorially independent news and information source, sponsored by a pro bono public service project by Kohn, Kohn & Colapinto, LLP. The blog highlights important news, legal developments and policy issues critical to whistleblowers and their advocates, both in the United States and internationally. The contributors to this blog are respected leaders in their fields, including the authors of key whistleblower law books, current and former legal professors, spokespersons before Congressional committees and other public bodies, directors of non-profit whistleblower advocacy groups, and prominent attorneys specializing in representing/assisting whistleblowers in the United States and throughout Europe, Asia, Africa and South America.