DOJ Civil Division Gives Clarity on “Inability-to-Pay” Determinations in the Midst of Ongoing Pandemic
With businesses hard hit by the COVID-19 pandemic, entities facing False Claims Act and other civil cases may increasingly need to avail themselves of the DOJ’s “inability-to-pay” process. Last month, the acting assistant attorney general circulated to the Civil Division a memorandum addressing factors to consider when assessing these claims, nearly a year after a similar memorandum for the Criminal Division on essentially the same topic. Defendants can now leverage this newly public “analytical framework” that the DOJ reportedly will use to assess an entity’s assertion of an inability to pay a settlement of civil claims.
