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December 01, 2023

But-For Causation Must be Pled in FCA/AKS Complaint

In United States ex rel. Louderback v. Sunovion Pharmaceuticals, Inc., File No. 17-cv-1719 (ECT/LIB), the District of Minnesota concluded, based on 42 U.S.C. 1320(a)-7b(g) of the Anti-Kickback Statute and the Eighth Circuit Court of Appeals decision in United States ex rel Cairns v. D.S. Medi. LLC, that a False Claims Act relator must plead but-for causation in a complaint with particularity to survive a motion to dismiss.  Because the relator had not pled particular facts that, if true, would prove that, but for the allegedly illegal kickback terms in the at-issue agreement, pharmacies would have prescribed a different therapy, the relator’s claims were dismissed for failure to state a claim. The Court allowed the plaintiff until January 12, 2024, to file a second amended complaint.   

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