whistleLast week, the United States filed its long-awaited motion to dismiss a major False Claims Act (FCA) lawsuit filed in the Northern District of California, U.S. ex rel. Campie v. Gilead Sciences, Inc. The Government argued that dismissal was warranted “to avoid the additional expenditure of government resources on a case that it fully investigated and decided not to pursue.” Last December in a U.S. Supreme Court filing, the Government promised that it would seek dismissal of the suit—filed by whistleblowers formerly employed by Gilead, a large brand-name drug manufacturer. The Government likely made that promise to ensure that the Supreme Court would not agree to hear Gilead’s appeal from a Ninth Circuit decision reinstating the case.

The motion could end up becoming a major test of the Granston Memo, a January 2018 Department of Justice memo that directed department lawyers who review FCA qui tam lawsuits to consider seeking dismissal. The FCA grants the Government a virtually unfettered right to dismiss FCA suits filed by private litigants in the name of the United States. Yet the Ninth Circuit and several other federal appeals courts have demonstrated their willingness to closely examine Government efforts to shut down relators’ FCA lawsuits. And the district judge hearing the Gilead case very recently rejected a similar motion to dismiss—ruling that the Government must demonstrate that it has undertaken an absolutely thorough investigation before he will even consider dismissal.