DAAG Brenna Jenny Warns Heightened FCA Enforcement Is “The New Normal,” Addresses Enforcement Priorities and Policies
During her keynote speech at the Federal Bar Association’s Qui Tam Conference, Brenna Jenny, Deputy Assistant Attorney General for the Commercial Litigation Branch, stated that robust FCA enforcement is “the new normal.” Key statistics, including those we discussed here, back her up: she revealed that DOJ has issued more than 1,000 Civil Investigative Demands (“CIDs”) in each of the last four years, noted that qui tam actions increased by 33% last year, and that 480 qui tam actions have already been filed so far in fiscal year 2026. She attributed this dramatic increase at least in part to enhanced data mining being conducted by DOJ and whistleblowers. Describing the FCA as a “flexible tool,” Jenny left no doubt that FCA enforcement will remain high even as she acknowledged that it is not “an all-purpose anti-fraud statute.”
Court Dismisses EMTALA-Based Qui Tam Over Relator’s Objections
DOJ recently secured dismissal of a qui tam complaint premised on alleged violations of EMTALA over the relator’s objections, with the district court affirming that DOJ satisfied the Polansky standard for Section 3730(c)(2)(A) dismissals by presenting a “reasonable argument.” In this case, DOJ’s argument rested on perceived flaws in the viability of the relator’s legal theory, government litigation costs, and complex privilege issues that would need to be resolved during discovery.
Supreme Court Affirms Broad DOJ Dismissal Authority
On June 16, 2023, the Supreme Court issued its opinion in United States ex rel. Polansky v. Executive Health Resources, affirming that courts should grant DOJ motions to dismiss over relator objections “in all but the most exceptional cases.”
