Attendees of the Federal Bar Association’s annual Qui Tam Conference gained valuable insights from one of DOJ’s top False Claims Act enforcers last month. Commercial Litigation Branch Deputy Assistant Attorney General Brenna Jenny presented a keynote speech outlining the government’s enforcement philosophy and priorities, and was a panel member for a session titled “‘Illegal DEI’ as an FCA Trigger?” All recipients of government funding will want to take note of what DOJ had to say, but those in the healthcare industry – the industry generating the most FCA recoveries for the government – will be especially interested.

The Government’s Prosecutorial Discretion

The False Claims Act is a far-reaching statute that has evolved over time as government spending has spread to new industries and as bad actors have devised new schemes for wrongfully obtaining funds from the government. At the same time, the FCA is famously not an “all-purpose antifraud statute” “or a vehicle for punishing garden-variety breaches of contract or regulatory violations.”[1] Among other things, DOJ uses its prosecutorial discretion to balance these sometimes competing realities, and the keynote speech described some factors that may be more or less persuasive to the Department in exercising that discretion:

• DOJ is more likely to pursue claims involving concrete harm and less likely to pursue those involving theoretical harm. But, she added, there are two important caveats. First, if a defendant put...

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