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.
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