Below are noteworthy False Claims Act (FCA) decisions from the third quarter of 2023.

The main issues in the cases are:

1. Materiality. The Fourth Circuit held that a pharmacist's efforts to falsify patient eligibility showed the eligibility requirements were material.
2. Government Investigation Period. The Fifth Circuit cut in half a government jury verdict because of the government's lengthy investigation.
3. Damages in Procurement Cases. The Ninth Circuit limited damages in a government procurement case, holding that penalties should be based on the number of invoices, not items and that the government had to prove lost value in the goods it received.
4. Anti-Kickback Statute (AKS) Causation Standard. Two District of Massachusetts courts split on the causation standard to apply for Anti-Kickback Statute-based FCA claims.

Further discussion on these cases is below.

Fourth Circuit Holds Misstatements About Medicaid Eligibility Could Be Material, Even If Eligibility Requirements Were Unlawful

United States v. Walgreen Co., 78 F.4th 87 (4th Cir. 2023)

On August 15, the Fourth Circuit revived a FCA lawsuit against Walgreens, finding that Walgreens's certifications of Medicaid eligibility were material to the government's decision to pay for certain drugs. This case stems from the 2016 admission by a Walgreens pharmacy manager that she falsified lab results and forms to make it appear that patients were eligible for Medicaid coverage of expensive hepatitis C drugs so that they...

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