Circuit Split on FCA Causation Deepens with Upcoming First Circuit Ruling

Bradley Arant Boult Cummings – The First Circuit will decide the causation standard required in FCA cases predicated on the Anti-Kickback Statute, deepening a circuit split on the issue and potentially teeing up Supreme Court intervention.

U.S. District Judge Nathaniel Gorton asked the First Circuit to review his recent ruling that the government need not prove a “but for” causal connection between an AKS violation and an allegedly false claim. In certifying this decision for interlocutory appeal, Judge Gorton acknowledged that there is “substantial ground for difference of opinion” on the standard, likely referencing the growing divide between circuit courts on this outcome-determinative issue. This ruling pauses United States v. Teva Pharmaceuticals USA Inc.—a sprawling FCA case wherein the government accuses Teva Pharmaceuticals of using illegal kickbacks to boost its drug sales, thereby causing Medicare to pay $1.49 billion in tainted claims.

Source:

• Bradley Arant Boult Cummings: Circuit Split on FCA Causation Deepens with Upcoming First Circuit Ruling