A Sixth Circuit decision has widened a circuit split concerning False Claims Act (FCA) actions based on Anti-Kickback Statute (AKS) violations. On March 28, 2023, the U.S. Court of Appeals for the Sixth Circuit in U.S. ex rel. Martin v. Hathaway1 joined the Eighth Circuit in ruling that the government and relators must meet an exacting “but for” causation standard – rather than the more relaxed and plaintiff-friendly standard articulated by the Third Circuit – when pursuing FCA actions based on AKS violations.
Background
In 2010, Congress amended the AKS to expressly provide that claims submitted to the government that include “items or services resulting from a violation” of the AKS necessarily constitute “false or fraudulent claim[s] for purposes of” the FCA.2 This statutory amendment clarified that alleged violations of the criminal AKS can serve as the predicate for lawsuits filed under the civil FCA.
As the cases mounted, litigants began challenging the level of proof that the amendment’s “resulting from” language requires. Specifically, parties disputed whether (a) a “but-for” causation standard – showing that the supposed false claims would not have been submitted had it not been for the alleged illegal kickbacks – applied; or (b) whether only some general “link” between the alleged AKS violation and the claim(s) at issue is required.
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