Sales representatives’ operating-room presence, promotional meals, and efforts to sell costlier devices raised triable questions about unlawful kickbacks despite otherwise lawful commission arrangements.
An orthopedic medical device manufacturer failed to secure summary judgment on federal False Claims Act (FCA) claims alleging that commissions paid to independent contractor sales representatives violated the Anti-Kickback Statute (AKS) and resulted in improper government reimbursements. A federal district court in Massachusetts found that commission-based compensation did not automatically constitute an unlawful kickback, but evidence of the representatives’ relationships with surgeons and promotional practices could establish intent to influence medical purchasing decisions improperly. The court also permitted a related Colorado false claims claim to proceed, while granting summary judgment on the remaining state and local claims, the federal false-certification theory, and a conspiracy claim (United States ex rel. Langer v. Zimmer Biomet Holdings, Inc., No. 21-cv-11293-PBS (D. Mass. Oct. 21, 2026)).
Sales force restructuring. Zimmer Biomet manufactures and markets orthopedic devices used in surgical procedures. After the 2015 merger of Zimmer Holdings and Biomet, the company reorganized its sales force, converting sales representatives in directly managed territories into independent contractors beginning January 2016.
A former sales representative challenged the...
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