McDonnell’s Impact on the Evolution of the Anti-Kickback Statute

April 3, 2017

O’Melveny partner David Kirman and counsel Cameron Smith co-authored the article, “McDonnell’s Impact on the Evolution of the Anti-Kickback Statute” for the April 2017 issue of Compliance Today. The piece describes the federal Anti-Kickback Statute (AKS), which broadly prohibits giving, receiving, offering, or soliciting remuneration in exchange for a referral of healthcare services reimbursed by a federal healthcare program. 

In McDonnell v. United States, the US Supreme Court held that a governmental official is not guilty of bribery if he received gifts in exchange for arranging meetings for and extending access to a constituent, the authors explain. 

McDonnell may presage new arguments for defendants against AKS allegations, the authors write, as at least one court has recently taken the position that a corporate executive does not violate the AKS where the intent is to “cultivate a business relationship or create a reservoir of goodwill.” Yet companies must still be vigilant in AKS compliance and training, they conclude.

Located in O’Melveny’s Century City office, Kirman is a trial lawyer who draws on his experience as a former federal prosecutor to represent clients in government investigations, prosecutions, and business disputes. Smith, who resides in the firm’s Newport Beach office, is a litigator specializing in complex litigation on behalf of, and providing regulatory and compliance advice to, businesses in the healthcare, life sciences, and financial services industries.