DOJ Deputy Assistant Attorney General Addresses FCA Enforcement Priorities and Reinforces Commitment to Robust Enforcement

On February 19th, Brenna Jenny, Deputy Assistant Attorney General for the Commercial Litigation Branch at the U.S. Department of Justice, provided the keynote speech at the Federal Bar Association’s Qui Tam Conference.

At this address, and in an earlier panel discussion centering on Diversity, Equity, and Inclusion programs (DEI), Jenny focused on False Claims Act (FCA) enforcement priorities and DOJ enforcement practices, including how DOJ identifies cases, when it might dismiss cases, and its approach to resolutions.

DOJ FCA Enforcement Priorities

Health Care

Jenny noted that, historically, most FCA resolutions occur in the health care space. She then discussed the main health care areas currently drawing DOJ’s attention.

• Managed Care: DOJ is prioritizing cases involving risk adjustment practices which center on the submission of unsupported HCC codes to CMS, enrollment and marketing Medicare Advantage suspect broker arrangements and kickbacks, denial of care through prior authorization criteria, and abuse of medical loss ratios.
• Drug Prices: DOJ is focused on candidness and consistency. For example, if companies make different statements regarding drug prices to the government from those made externally or to the public, this will draw DOJ’s attention. Also receiving increased scrutiny are improper copayment assistance programs and practices contributing to allegedly inflated drug prices.
• Unnecessary Services and Substandard Care: While not looking to second-guess legitimate medical decision-making, DOJ will continue focusing on allegations that the government was improperly billed for medically unnecessary services and defective items. DOJ will also scrutinize whether companies manufactured and sold materially defective medical products.

Federal Discrimination Laws

Jenny stated that “DEI is a priority for us, and these cases are receiving expedited priority treatment.” But, as Jenny explained, rather than only focusing on diversity, equity, and inclusion programs, DOJ is taking a broader look at practices in government contracting leading to discrimination based on protected characteristics such as race and sex. Jenny noted that the purpose of government contracting is not only the provision of goods and services but also the forging of a partnership with the United States government, and contactors must be ready to comply with all applicable laws and regulations.

Trade Fraud

Jenny noted that misclassification, undervaluation to lower duties owed, and misstating the country of origin on products sold to avoid duties are three areas where importers can expect increased FCA exposure. Additionally, Jenny discussed how there was a 50% increase in trade and customs-based FCA cases in 2025 compared to an average over the past five years.

DOJ Enforcement Tools and Practices

Data Mining

Jenny emphasized DOJ’s use of data mining to protect individuals and the public. She ticked off a litany of areas where DOJ’s data mining efforts have led to investigations and enforcement actions: opioids, patient harm, patient deaths, kickbacks, and macro prescribing trends.

Dismissing Qui Tam Cases

DOJ will consider whether allowing a qui tam case to proceed to litigation serves the interests of the United States. If not, it will move to dismiss based on its statutory dismissal authority in 31 U.S.C. § 3730(c)(2)(A) where cases are proven to be meritless or inconsistent with current law and where the agency allegedly defrauded does not support the case. Jenny noted that while DOJ only moved to dismiss 25 qui tam cases in 2025 pursuant to (c)(2)(A), she expects DOJ will increase use of its statutory authority to dismiss cases in the future. She is also committed to evaluating dismissal decisions at the declination stage for all cases, rather than making dismissal decisions on an ad hoc basis, as was the practice in prior administrations.

Approach to Resolutions

A non-exhaustive list of arguments the DOJ deems persuasive when reaching resolution decisions include:

• DOJ prioritizes cases involving items or services that are dangerous, defective, or endanger patient harm or safety.
• Even if there is no actual patient harm, actions which place patients in harm’s way are problematic. In these instances, luck will not be a defense.
• Arguing that damages are hard to quantify is not a persuasive approach.
• Also, arguing that “everyone does it” is not advised as this engenders more, not less interest at DOJ.
• The government is not committed to “old theories” of liability and will utilize novel theories in certain instances.
• The government’s continued payment of claims is not consistent with government approval. Rather, DOJ will require evidence of affirmative, informed acceptance by agency and acknowledged that defendants may need to engage in discovery to obtain such evidence.
• DOJ is committed not to rely on sub-regulatory guidance in making enforcement decisions. Citing Attorney General Bondi’s 2025 Memo Reinstating the Prohibition on Improper Guidance Documents, Jenny noted that sub-regulatory guidance “does not have the force and effect of law,” and is, therefore, an improper basis for enforcement action.

Takeaways

Robust FCA enforcement is a priority of the DOJ, not only in health care, but also in federal discrimination, trade, and anytime there is harm to patients, the public, or taxpayers. Although Jenny’s remarks did not break new ground, she strenuously reinforced the policy objectives of the Trump Administration. We will be monitoring additional developments in this area as the Administration continues to implement policy changes. Feel free to contact any of the authors of this post for more information or to discuss how these changes impact you or your company.