DOJ Memo Barring Reliance on Agency Guidance: Where Are We Now?

A Justice Department memo issued in January that prevents DOJ attorneys from arguing that agency guidance created binding legal requirements is already affecting health-care fraud litigation strategies.

The Brand Memo, named after then-Associate Attorney General Rachel Brand, has been in place for six months and appears to be affecting how False Claims Act cases are investigated and defended. The memo prevented DOJ attorneys from using their enforcement authority to turn federal agency guidelines into binding rules or using noncompliance with agency guideline to prove legal violations.

While the memo only directly affects the DOJ, health lawyers who wrestle with ...