In United States ex rel. Cairns v. DS Medical LLC, the US Court of Appeals for the Eighth Circuit set a higher bar for proving causation in False Claims Act cases where plaintiffs seek to establish liability under the 2010 amendments to the Anti-Kickback Statute. The court held that, to prove that a false claim includes items or services “resulting from” a violation of the Anti-Kickback Statute, plaintiffs must show an actual or “but-for” causal link between alleged kickbacks and claims for government money.
In Cairns,[1] the Eighth Circuit split with the Third Circuit, which previously adopted a more lenient causal standard. The Eighth Circuit’s holding imposes a higher bar on claims asserted under the 2010 amendments—a bar for which the industry and defense counsel have long advocated.
Since 2018, False Claims Act (FCA) defendants accused of submitting claims after receiving or soliciting kickbacks have strategized the defense under the shadow of the Third Circuit’s decision in United States ex rel. Greenfield v. Medco Health Solutions, Inc.[2] There, the Third Circuit held that to prove a false claim “result[ed] from” a kickback, plaintiffs need not show a direct causal link. The court acknowledged that “resulting from” most naturally requires direct causation. But it consciously departed from the text because that phrase was added to the Anti-Kickback Statute (AKS) by a 2010 amendment intended “to avert ‘legal challenges that...
Athena Construction Group Inc. must pay about $1 million for violating the False Claims Act by making misrepresentations about its eligibility to receive contracts set aside for HUBZone companies,...