Takeaways From DOJ Civil Division's Inability-To-Pay Memo

Law360 (September 10, 2020, 12:38 PM EDT) -- On Sept. 4, Acting Assistant Attorney General Ethan P. Davis issued a memorandum, "Assessing an Entity's Assertion of an Inability to Pay," to the U.S. Department of Justice's Civil Division. This guidance represents a capstone to Davis' tenure, coming three days after the announcement that he will be leaving the DOJ and three days prior to his effective departure on Sept. 7.

Although the Civil Division has long had a practice of taking into account an organization's inability to pay when negotiating civil settlements, the new guidance formalizes this practice and sets forth an analytical framework for evaluating and addressing a...

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