5 Takeaways As DOJ Investigative Powers Get Challenged

Peter Hutt is quoted in a Law360 article providing takeaways from a recent challenge to the Justice Department’s investigative powers. The challenge was filed by a podiatry chain embroiled in False Claims Act litigation, and voiced procedural objections to the civil investigative demands that the DOJ issued after electing not to intervene in the case.

"Defendants are going to have to be alert to asking themselves the question, 'Is it possible that the more recent CIDs that I am receiving in fact might be after a declination decision has been made?'" Hutt says. To answer that question, companies that receive CIDs should ask the DOJ point-blank whether it has made an intervention decision, he adds.

Hutt also comments, "Around the edges, Department of Justice attorneys are going to have an incentive to draft CIDs as broadly as they think they will ever need during the course of the investigation, because they may lose the ability to fashion additional CIDs.”

Another key point, according to Hutt, is that there “are many situations where the government may seek to continue to receive information ... under the existing CID. There is a real question in my mind about whether the government can do that under the language of the statute. And I think the answer is no."