FCA Enforcement: Eighth Circuit Requires But-For Causation for Anti-Kickback FCA Violations
The Eighth Circuit Court of Appeals’ recent ruling in United States ex rel. Cairns v. D.S. Med., LLC is a significant win for defendants facing False Claims Act (FCA) claims based on alleged violation of the Anti-Kickback Statute (AKS). That statute states that claims for items or services “resulting from” a violation of the AKS constitute false or fraudulent claims for purposes of the FCA. 2022 WL 2930946 (8th Cir. Jul. 26, 2022).
In Cairns, the Eighth Circuit held proof of fraud or falsity under the FCA requires a showing that “a defendant would not have included particular items or services but for the illegal kickbacks.” Id. at *6 (emphasis added). This sets an appropriately high bar for causation, requiring proof that the defendant would not have submitted the alleged false claim in the absence of the alleged kickback.
The Cairns ruling also creates a circuit split with the Third Circuit Court of Appeals, which previously held that for a relator to show a false claim “result[ed] from” a kickback, there was no need to prove a direct causal link. United States ex rel. Greenfield v. Medco Health Solutions, Inc., 880 F.3d 89 (3d Cir. 2018). We will continue to monitor for legal developments, as the issue inevitably is raised before other circuit courts of appeal— and, given the circuit split, may eventually be addressed by the Supreme Court. For now, however, FCA defendants within the Eighth Circuit have support for this stricter causation standard for AKS-related claims.
