“Kickbacks, Materiality Were Focus of Biggest FCA Opinions in 2023”

Bloomberg Law reports on the False Claims Act litigation landscape in 2023, talking with Phillips & Cohen partner Colette Matzzie.

The article reads:

“An FCA defendant’s continued payments argument ‘has not been seen as a dispositive factor although it is relevant,’ said whistleblower attorney Colette G. Matzzie with Phillips & Cohen LLP.

The Third Circuit’s opinion is ‘a good example of where the courts have settled post-Escobar in weighing factors on materiality and not treating government continued payment as dispositive,’ she told Bloomberg Law.

Another decision that Matzzie highlighted affects what the government or a whistleblower must show to demonstrate an unlawful kickback—and arguably increased an FCA circuit split.

In United States ex rel. Martin v. Hathaway, the US Court of Appeals for the Sixth Circuit on March 28 joined the Eighth circuit by adopting a “but-for” causation standard for alleging a kickback under the FCA.

This issue is important because under the “but-for” standard “a medical device or pharma company might be able to pay a provider cash intended to induce use of its device, but then avoid liability as a matter of law if the provider testifies they would have selected the same device or drug anyway,’ Matzzie said.”

To read the full article see, “Kickbacks, Materiality Were Focus of Biggest FCA Opinions in 2023,” Bloomberg Law, December 29, 2023.