J. Matthew Kroplin writes about use of the “taint” theory of causation to address an ambiguity in the 2010 amendment of the Anti-Kickback Statute. The argument that all reimbursement claims made after falsely certifying compliance with the AKS are therefore “tainted”, is used to compensate for the failure to define what it means for a claim to “result from” a violation of the AKS.
He explains that “the growing trend of courts is to require relators to produce evidence at the summary judgment stage of the lawsuit establishing an actual causal link between the alleged kickback scheme and the submission of false claims to the government. Merely asserting that all claims were ‘tainted’ by kickbacks will not suffice.”
