In 2010, Congress amended the Anti-Kickback Statute (AKS) to provide that claims “resulting from” an AKS violation are “false or fraudulent” for False Claims Act (FCA) purposes. 42 U.S.C. § 1320a-7b(g). For over a decade, courts have wrestled with the significance of the “resulting from” requirement and the degree of causation it warrants for an FCA violation premised on an illegal kickback, as we have covered in prior posts.

In its recent decision, U.S. ex rel. Cairns v. D.S. Medical LLC, the U.S. Court of Appeals for the Eighth Circuit added to this ongoing causation debate, splitting with the U.S. Court of Appeals for the Third Circuit and holding that “resulting from” requires but-for causation between the AKS violation and the alleged false claim. Cairns is the first to impose such a rigorous causation standard in AKS-based FCA cases and marks a significant departure from the Third Circuit’s precedent in U.S. ex rel. Greenfield v. Medco Health Solns., Inc., which held that a direct causal link is not required between the prohibited kickback and the subsequent claim for reimbursement. For a detailed discussion of the Greenfield decision, see here.

Factual Background

In Cairns, the relators alleged the defendants – a neurosurgeon, his medical practice, his fiancée and a medical device distributor wholly owned by his fiancée – engaged in a prohibited kickback scheme whereby the neurosurgeon ordered spinal implants from his fiancée’s device company, generating...

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