Overview:

A recent ruling by the First Circuit Court of Appeals deepens the False Claims Act divide among circuit courts.

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A recent ruling by the First Circuit Court of Appeals has deepened the divide among circuit courts regarding False Claims Act (FCA) liability based on violations of the Anti-Kickback Statute (AKS).

In United States v. Regeneron Pharmaceuticals, Inc., No. 23-2086, the First Circuit adopted a but-for causation standard. The First Circuit found that to establish False Claims Act liability, the government must show that a claim would not have been submitted but for the AKS violation. This creates a higher burden for the government and whistleblowers to bring claims.

Three attorneys from Baker Donelson, one of the largest U.S. law firms, wrote an article on the decision. In the article, the attorneys indicated this recent decision may lead to a U.S. Supreme Court (Court) Review because the decision creates a further divide among the circuit courts. Notably, per the article, “this decision aligns with the Sixth and Eighth Circuits while rejecting the Third Circuit’s more lenient standard, which allowed claims to be deemed false even if an AKS violation had no actual impact on provider decision-making.”

Whether the Court will hear the matter is ultimately up to the Court. A party may petition the Court to hear their case if the party is not satisfied with the decision of a lower court. The party petitions the Court...

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