The US Supreme Court resolved a 20-year circuit split near the end of its term, when it backed the Justice Department’s authority to end a whistleblower’s False Claims Act suit that prosecutors viewed as too costly in government resources to continue.
The split grew in recent years from two standards to three, then to four. Petitions seeking resolution were denied by the court in 2020 and 2021. Meanwhile, a DOJ official issued guidelines on when to increase dismissal motions, prompting Sen. Chuck Grassley (R-Iowa) to introduce legislation to make it more difficult for the DOJ to stop whistleblower suits.
But all the wrangling and arguing didn’t make much of a difference to FCA litigation in the end.
Only twice have whistleblower suits survived a DOJ motion to dismiss at the trial court level regardless of the various standards. And no appeals court ever held that any whistleblower suit should proceed over the government’s motion to dismiss, a DOJ brief said.
“Obviously, there was a circuit split,” said Bob Rhoad, who represents FCA defendants with Nichols Liu LLP. But “that issue was mostly academic and of little practical consequence. The DOJ almost invariably succeeded in its efforts to dismiss.”
The bigger question was why a whistleblower “would want to proceed in a case over the objection of the real party in interest,” he said. “In other words, it...
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