Clay Lee, Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the firm’s Nashville office, was quoted in Law360 Healthcare Authority, in “With Circuits Split, Mass. Judge Backs Tough Fraud Standard,” by Dan McKay. (Read the full version – subscription required.)

Following is an excerpt:

If the heightened standard spreads beyond the Sixth and Eighth circuits, whistleblowers could have a harder time pursuing FCA claims based on kickback violations. But attorneys are divided on the impact.

Clay Lee, a former federal prosecutor whose work at Epstein Becker Green includes FCA defense, said the split is already having real-world consequences.

Plaintiffs and relators are starting to "bolster their claims by adding more meat to the allegations" in anticipation of a but-for standard, he said.

"Whether or not that turns out to be the case," Lee said, "they're all just prophylactically being cautious."

Whistleblowers might also choose to file their claims in districts that haven't adopted the more rigorous standard. That sets the stage for hard-fought battles in the early stages of cases.

"You're going to see more fights at the initial motion-to-dismiss stage, where litigants are going to claim that the pleadings don't support the higher but-for causation standard," Lee said.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.