Where the United States brought suit alleging that the defendant pharmaceutical company violated the Anti-Kickback Statute and the False Claims Act by improperly funneling millions of dollars to a purportedly independent charitable foundation to subsidize patient copays, an interlocutory appeal should be certified regarding the causation standard applicable to claims for violation of those two statutes.
“This is an order, issued pursuant to 28 U.S.C. §1292(b), certifying for interlocutory appeal a portion of a memorandum and order of this Court entered on September 27, 2023. … The Court concluded that the proper standard was but-for causation: that is, in order to prove that a claim for Medicare reimbursement ‘that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for purposes of [the FCA],’ 42 U.S.C. §1320a-7b(g), the government must prove that the AKS violation was a but-for cause of the false claim. …
“On August 14, 2023, Judge Nathaniel M. Gorton of the District of Massachusetts issued an order certifying an interlocutory appeal in a case presenting essentially the same issue of statutory interpretation. … Judge Gorton, however, reached a different conclusion than the undersigned judge. …
“The split between the two judges of this court reflects a split in the circuits. …
“This case clearly satisfies the criteria for certification under §1292(b). …
“Accordingly, the Court hereby certifies for interlocutory appeal,...
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