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.