courts have offered various views as to
what allegations and evidence are necessary to establish materiality, both at
the pleading stage and on the merits. In
2019, the Supreme Court denied several
petitions for writ of certiorari seeking
to revisit or clarify aspects of Escobar’s
materiality test, including Prather v.
Brookdale Senior Living Communities,
Rose v. Stephens Institute and Gilead Sciences v. Campie.
Materiality is likely to continue to play
a critical role in FCA cases, with discovery and arguments focused on the government’s likely or actual response to alleged
A fourth area is the DOJ’s increased use
of its statutory authority to file motions to
dismiss in qui tam cases.
Under the “Granston Memo,” codified
in Section 4-4.111 of the Justice Manual,
DOJ attorneys are directed to consider
whether the United States’ interests are
best served by filing a motion to dismiss
a qui tam case under 31 U.S.C. Section
3730(c)( 2)(A). The DOJ has identified
dismissal as a means of resolving cases
whose continued pursuit by a relator
without the DOJ’s intervention would,
according to the DOJ, undermine the
goal of preventing fraud or other governmental interests.
According to a Dec. 19, 2019, letter
from the DOJ to Sen. Chuck Grassley, the
DOJ has filed motions to dismiss in 45 FCA
cases since January 2018, which is less than
4% of the total 1,170 qui tam suits filed
during that period. District courts have
mostly granted the DOJ’s motions, but
there is a circuit split as to the proper standard of review for such motions.
The extent to which the DOJ relies on
its dismissal authority, and the extent to
which courts may review the DOJ’s basis
for seeking dismissals, will likely continue
to generate attention in 2020.
—BARAK COHEN AND
KEEPING UP WITH CHANGING ENVIRONMENTAL
policies and regulations across the globe
can be daunting. In-house counsel’s challenge of advising business based on those
changes is what led Houston-based Lex
Mundi, along with its international partners, to create the Lex Mundi Global
Climate Change Law Guide.
The free guide, made available in early
February, allows in-house counsel to look
up environmental regulations, greenhouse
gas emission trading schemes, energy efficiency measures, renewable energy sources,
financial institutional measures and prominent litigation worldwide. It also allows
users to create a custom side-by-side report
comparing different jurisdictions to help
guide business decisions.
“Most jurisdictions do have some long-
term measures in places to reduce emissions,”
says Lauren Smith, international business
development manager at Lex Mundi. “That’s
why we developed this for in-house counsel.
So they can be aware and do some risk miti-
gation analysis with outside counsel before
committing to business decisions.”
Marloes Brans, a partner and head of
climate change at Lex Mundi member firm
Houthoff in Amsterdam, says in-house
counsel have shown an increased interest
in climate change issues in the past year.
“I think it being in the media accelerates it to the top of the agenda for general
counsel,” Brans ssays.
She explains that, in conjunction
with Lex Mundi, Houthoff hosted a
commission on governance last year and
the main discussion point, along with carbon dioxide reduction and soil contamination, was how to implement environmentally friendly measures that put companies
in compliance with the various regulations
worldwide, showing the need for a guide
“What we’re noticing is that there is
a lot surrounding climate change,” Brans
says. “They [general coun-
sel] hear that a lot is going in
the litigation and regulatory
aspects. I think the guide is a
very good tool to provide some
sense of what’s going on.”
Because of litigation on
environmental issues, the
regulations are fluid and con-
tinuously changing and the
stakes to that kind of litigation
are getting higher. In Decem-
ber, for example, the Supreme
Court of the Netherlands
in State of the Netherlands v.
Urgenda Foundation ordered
the government to cut greenhouse gas
emissions by 25% from 1990 levels by the
end of 2020, Brans explains. It is the first
of its kind where a government has been
ordered to reduce emissions.
“That is a groundbreaking case and is
an example of a strict outcome from litigation,” Brans says.
As regulations continue to expand and
more suits are filed regarding climate
change, the guide will be updated. Smith
says Lex Mundi will be adding regulations
and significant litigation from different
jurisdictions as time goes on.
LEX MUNDI LAUNCHES ENVIRONMENTAL REG GUIDE