On July 26, 2022, the Eighth Circuit raised the bar for plaintiffs seeking to allege a violation of the False Claims Act (“FCA”) predicated on the Anti-Kickback Statute (“AKS”). Under this decision, the plaintiff must prove “but for” the illegal kickbacks, the defendants would not have submitted particular claims for reimbursement. United States ex rel. Cairns v. D.S. Medical, LLC, 2022 WL 2930946 (8th Cir. July 26, 2022).

In D.S. Medical, the government alleged that the defendant neurosurgeon favored certain spinal implants distributed by a company wholly owned by his fiancée. Despite the defendant neurosurgeon being her only large customer, the arrangement was quite lucrative — the fiancée made more than $1.3 million in commissions in a single year from a single manufacturer. On the other hand, the neurosurgeon –– received an offer to purchase company stock from the manufacturer.

The government alleged three claims under the FCA, one of which arose under the AKS. Under the 2010 amendment to the AKS, the statute requires that a claim “result from” an AKS violation to constitute a false claim under the FCA. See 42 U.S.C. 1320a-7b(g). However, the statute does not define what “resulting from” means, leading to a circuit split of statutory interpretation.

Here, the Eighth Circuit relied on a plain reading of the statute. Citing Burrage v. United States, 571 U.S. 204 (2014), the court identified that the Supreme Court had previously addressed this issue in an unrelated...

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