Thursday, January 11, 2018

3d Cir: FCA retaliation requires "but for" causation

Not official use.
Last week, the Third Circuit issued a precedential opinion in DiFiore v. CSL Behring LLC. DiFiore claimed that her employer fired her (technically, constructive discharge) in retaliation for whistleblowing activity. In particular, she internally reported concerns about "the activities of CSL and its employees in marketing drugs for off-label use and including off-label use in sales forecasts."

DiFiore included a claim of retaliation under the False Claims Act (FCA). The Third Circuit concluded that a jury instruction that FCA retaliation required "but for" causation (as opposed to the lower burden of a "mixed motive" instruction) was appropriate.