Earlier this year, the Third Circuit Court of Appeals affirmed the decision of the United States District Court for the Eastern District of Pennsylvania in the case of DiFiore v. CSL Behring, LLC. DiFiore v. CSL Behring, LLC, 879 F.3d 71, 73 (3d Cir. 2018). The opinion set forth the precedent that “but-for causation” is required for an FCA retaliation claim. The litigation involved the claims of a former employee of CSL Behring, Marie Difiore, who was asserting a claim for retaliation under the FCA. The case was before the Third Circuit on an appeal by Difiore after a March 17, 2016 dismissal of her case by the District Court.

DiFiore’s case was centered on claims that she had been constructively discharged from her employment at CSL Behring in retaliation for raising concerns about certain marketing practices of CSL Behring. CSL Behring is a pharmaceutical company that markets plasma and protein biotherapeutics. DiFiore had worked at CSL Behring since April of 2008, receiving a promotion to be the Director of Marketing in August of 2011. In this position, DiFiore became concerned about CSL Behring’s activities in marketing drugs for off-label use. Difiore expressed such concerns to her supervisors, and DiFiore contends that these concerns were at least partially responsible for the initiation of a third-party compliance audit. DiFiore then alleged that as a result of her conduct, which is protected from retaliation by the FCA, she suffered several employment actions that led to her constructive discharge at CSL Behring. These actions included warning letters regarding her work conduct, disagreements with another co-worker, non-payment of her company credit card, unfavorable performance reviews, hostile interactions from her superiors, removal of certain of DiFiore’s responsibilities, and the institution of a performance improvement plan, all of which DiFiore alleged had never been issues before she raised her concerns regarding the off label promotional activities.

DiFiore argued that thecde District Court erred in dismissing her case by requiring DiFiore to show that her protected activity was the “but-for” cause of the alleged adverse action against her. DiFiore contended that she was only required to show that her protected activity was a “motivating” factor in the adverse actions taken by CSL. DiFiore’s argument was based upon the Court’s decision in Hutchins v. Wilentz, which she argued used the lower “motivating factor” standard to link protected conduct and adverse action in an FCA claim. However, the Court did not accept this argument, pointing to the fact that the “motivating factor” standard was not a determining factor in the Hutchins case, and the case was dismissed because the employee failed to prove that he engaged in protected conduct. The Court instead relied on two other U.S. Supreme Court cases, Gross v. FBL Fin. Servs., Inc. and Univ. of Texas Sw. Med. Ctr. v. Nassar, to hold that “but-for” causation must be shown to link the protected conduct and the adverse action in order to support an FCA retaliation claim. The Court upheld the ruling of the District Court that such “but-for” causation had not been demonstrated by DiFiore and thus, affirmed the ruling favor of CSL Behring.