In a recent speech, Deputy Attorney General Lisa Monaco announced three important updates to how DOJ attorneys are to approach corporate resolutions (as discussed further here). These changes depart from flexibilities offered by DOJ during the last administration. While the remarks were made against the backdrop of the Deputy Attorney General’s criminal portfolio, these Department-wide policies apply with equal force to the Civil Division’s False Claims Act work. It will be particularly important for companies in the middle of ongoing FCA investigations to reassess their strategies in light of these new policies.
As discussed further here and here, during the Obama administration, DOJ clarified its position on cooperation credit in the so-called Yates Memo, explaining that in order to get any cooperation credit, companies must disclose, “at a minimum, all relevant facts about responsible individuals.” But as discussed here, the Trump administration relaxed this standard. Trial attorneys were given the discretion to consider companies eligible for cooperation credit so long as they “in good faith…identify individuals who were substantially involved in or responsible for wrongdoing” and disclose that information to DOJ. But the Biden administration DOJ will be returning to the Yates Memo policy. It will no longer be sufficient for companies to disclose information only about individuals they determine to have been substantially involved in the misconduct. Instead, companies...
OAKLAND, Calif. — Hobby Lobby dodged unjust enrichment, but not false advertising, claims brought by consumers who say the company’s “limited time” sales are misleading because the discounted items...