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February 13, 2024   

The Causation Conundrum: The Growing Circuit Split Surrounding Causation and Kickback-Premised False Claims Act Cases

This Briefing is brought to you by AHLA’s Fraud and Abuse Practice Group.
  • February 13, 2024
  • John H. Lawrence , K&L Gates LLP
  • Michael Phillips , K&L Gates LLP

With the Supreme Court having issued its decision in United States ex rel. Schutte v. SuperValu, Inc. regarding scienter under the False Claims Act (FCA) in June 2023, the question naturally turns to the next “big ticket” issue in FCA jurisprudence, which may also find itself before the high court. One candidate is the issue of what is required to prove causation in FCA actions premised on kickback and referral schemes under the Anti-Kickback Statute (AKS). This issue has divided circuits, with the Third Circuit requiring merely some causal connection, and the Sixth and Eighth Circuits requiring “but-for” causation between the alleged kickback and the claim for payment. The First Circuit is set to join this growing split, having granted an interlocutory appeal on the issue following decisions from two judges in the District of Massachusetts that landed on opposite sides of the split.


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