“Brand Memo” from the U.S. Department of Justice: Reading Between the Lines

On January 25, 2018, Associate Attorney General Rachel Brand issued a memo prohibiting certain DOJ uses of federal agency guidance documents in affirmative civil enforcement cases. What should not be ignored is that the Brand Memo emphasized that the DOJ can continue to use agency guidance documents in ACE cases for “proper purposes.”  The Brand Memo clarified that while the DOJ “should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation,” it can still use agency guidance for certain other purposes.