In a case of first impression within the U.S. Court of Appeals for the Eighth Circuit, the court in United States ex rel. Cairns v. D.S. Medical, No. 20-2445, — F.4th —-, 2022 WL 2930946 (8th Cir. July 26, 2022), split with the Third Circuit by holding that to establish that a claim for payment violates the False Claims Act (FCA) via the Anti-Kickback Statute (AKS) a plaintiff must show but-for causation. That is, a plaintiff must show that the claim would not have been made were it not for allegedly illegal kickbacks. Cairns represents a sharp departure from the approach applied by other courts and will make kickback-based FCA cases far more difficult to establish in the Eighth Circuit.
The FCA imposes civil liability on anyone who knowingly presents, or conspires to present, a “false or fraudulent” claim for payment by the federal government. 31 U.S.C. §3729(a)(1)(A), (C). Under the AKS it is a felony to “knowingly and willfully solicit or receive” kickbacks for referrals, recommendations, or purchases of any “item[s] or service[s]” paid “in whole or in part” by Medicare or Medicaid. 42 U.S.C. §1320a-7b(b)(1)(A), (f).