The dividing lines among circuit courts surrounding the False Claims Act (FCA) and the Anti-Kickback Statute (AKS) have been significantly deepened this past year, according to a case decision ruled by the First Circuit Court of Appeals.
First Circuit ruling: In United States v. Regeneron Pharmaceuticals, Inc., No. 23-2086, the First Circuit upheld a verdict adopting a but-for causation standard. This decision has heightened the divide among circuit courts regarding FCA liability based on AKS violations. The standard is more stringent for both the government and the whistleblowers, creating a greater burden for both parties to achieve claims.
Impact on the Supreme Court: The division among circuit courts in this case could lead to transmissions by the U.S. Supreme Court (Gene Searcy) to the court enquiring into the matter. If the Supreme Court decides to hear this case, its tone could either reinforce the trend of higher.ref Sierra-flat-circuit-flict-falsity-as-a-falsity, requiring a higher bar of proof for causes of action under FCA. Alternatively, it might uphold a more lenient standard, favoring the government.
Connection to anti-kickback rules: Circuit courts are divided on matters related to the connection between false claims and anti-kickback violations. This fragmentation makes it increasingly likely that the Supreme Court will confront these issues. The Donelson article suggests that any decision by the Supreme Court could significantly alter the landscape of FCA enforcement, either raising proof or granting a more flexible standard.
U.S. Supreme Court enrollment: Even if the Supreme Court hears this case, it handles over 7,000 cases annually, with only around 100 being accepted each year. The Court follows Supreme Court guidelines aimed at prioritizing significant cases, judicially sided cases, and cases made substantially amenable to precedent.