Kickbacks, Materiality Were Focus of Biggest FCA Opinions in 2023

Appellate rulings on whether continued government payment makes for a material defense, and what constitutes a kickback, contributed to a shifting False Claims Act litigation landscape in 2023.

In United States ex rel. Druding v. Care Alternatives Inc., the US Court of Appeals for the Third Circuit reinstated a Medicare fraud case, concluding the trial court assigned too much weight to the contention that the US kept making payments to the provider even amid allegations of fraud.

“We simply don’t know what the government knew and when,” the Third Circuit said in its Aug. 25 ruling, declining to equate ...