A circuit split over the causation standard under the federal Anti-Kickback Statute (AKS) could grow wider after a recent Northern District of Illinois (NDIL) decision. In United States ex rel. Jeffrey Wilkerson & Larry Jackson v. Allergan Ltd., Case No. 22-CV-30130, Judge Lindsay C. Jenkins weighed in on the standard, ruling that “resulting from” in a 2010 amendment to the AKS requires “but for” causation in AKS-False Claims Act (FCA) cases. This opinion aligns with the First (2025), Sixth (2023), and Eighth (2022) Circuits, which deviated from the Third Circuit’s (2018) interpretation that “resulting from” requires some “link” between a kickback and the false claim short of but-for causation.
The Allergan opinion highlights circuit court disagreement regarding the AKS “but for” causation standard and the potential expansion of that split. The opinion also underscores the importance of this issue, as the Court provided detailed guidance as to the types of allegations it viewed as sufficient to show causation.
In 2010, Congress amended the AKS to provide that “a claim that includes items or services resulting from [an AKS violation] constitutes a false or fraudulent claim for purposes of [the FCA].” The meaning of that simple phrase, “resulting from,” remains a divisive issue in courts across the country. While the Seventh Circuit has yet to address the 2010 amendment with respect to FCA cases, in 2024 the Court opined on the...
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