This article discusses the "Garland Memo," which, while it notes that sub-regulatory guidance is not itself law, imposes few meaningful limitations on how and when Department of Justice attorneys litigating False Claims Act actions may rely on such guidance.
Attorney General Merrick Garland rescinded the Brand Memorandum,1 which directed Department of Justice ("DOJ") attorneys not to rely on sub-regulatory agency guidance to bring False Claims Act ("FCA") cases and other enforcement actions. Framing this move as a return to pre-Trump Administration norms, this new "Garland Memo" criticizes the Brand Memo as "overly restrictive" and a "substantial" departure from DOJ's "traditional approach" to guidance documents. The Garland Memo also announces planned revisions to the Justice Manual to align with the Department's new policy.
Although the Garland Memo notes that sub-regulatory guidance is not itself law, it imposes few meaningful limitations on how and when DOJ attorneys litigating FCA actions may rely on such guidance. If past is prologue, non-binding agency guidance will once again take center stage in FCA enforcement actions across a range of regulated industries.
Before 2017, DOJ and relators routinely relied on non-binding agency guidance documents in FCA litigation to help establish both that the defendant submitted false claims and that it acted knowingly. The Trump Administration moved to sharply curtail that practice, first through a memorandum2 issued...
The Management of Dangote Petroleum Refinery and Petrochemicals has noted with concern the circulation of unfounded and misleading claims suggesting that its petroleum products are exported to Lom...