FCA Now

Yesterday, the Seventh Circuit Court of Appeals affirmed a summary judgment decision dismissing a former employee’s False Claims Act (“FCA”) retaliation suit. Lam v. Springs Window Fashions, LLC, No. 21-2665, 2022 U.S. App. LEXIS 16633 (7th Cir. June 16, 2022). The appellate court agreed that the employer’s conduct fell short of “harassment” under the statute, and that the employee failed to establish a causal connection linking her protected reports and her termination. The employee, Jennifer Lam, began working at Springs Window Fashions, LLC (“Springs”), a window covering manufacturer, as its senior manager of global trade in January 2019. In that role, she came to believe the fabric blankets the company used to make window shades originated in China and not in Taiwan and Malaysia, as the supplier stated. Fabrics originating in China are subject to a higher 25 percent tariff. Between June and September 2019, the employee informed her supervisor—the company’s chief executive officer (“CEO”)—that Springs would need to pay higher tariffs on the fabric. She claimed the CEO was “frustrated and visibly irritated” with her conclusions about the tariffs and “angrily berated” her in a senior leadership meeting. The employee also claimed two other executives “scolded” her for disagreeing with the CEO on the issue. The employee raised no further reports on the tariff issue. In late September 2019, the employee began reporting to the company’s chief financial officer (“CFO”). The CFO wanted Lam to focus on an inventory problem with three manufacturing facilities in Mexico. Displeased with her lack of progress on the inventory issue, the CFO put her on a performance improvement plan (“PIP”) in December 2019. In February 2020, the CFO fired the employee for failing to adequately address the inventory problem, which resulted in an audit by the Mexican government. The employee sued Springs for FCA whistleblower retaliation in April 2020. She claimed her supervisors harassed and then terminated her for her reports about violations of trade law. The district court granted the employer’s motion for summary judgment, ruling that Springs did not retaliate by reacting angrily to the employee’s reports about the Chinese tariff issue. The court also concluded the employee had not established a causal connection between her last report in September 2019 and her termination in February 2020. On appeal, the parties asked the Seventh Circuit to define what constitutes “harassment” under the FCA. The employee pushed for the “harassment” standard used in Title VII retaliation claims: “whether the conduct here would have dissuaded a reasonable worker from complaining to management about its obligation to pay the tariffs.” Lam-Quang-Vinh, 2022 U.S. App. LEXIS 16633, at *10 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). Springs argued for the more stringent test used to analyze hostile-work-environment discrimination claims under Title VII: whether the “retaliatory acts were severe or pervasive enough to affect the terms and conditions of her employment.” Id. (citing Vance v. Ball State Univ., 570 U.S. 421, 427 (2013)). The court concluded the employee could not meet either test and declined to decide which standard applies. The employee’s claims that the CEO appeared “frustrated and visibly irritated,” that he “berated” her, and that two other executives “scolded” her did not rise to the level of harassment even under the more lenient test. The court relied on its own Title VII precedent, which requires more than generic descriptions of yelling and “unspecified harassment” to prove a reasonable worker would be dissuaded from reporting violations of the law. Id. at *11-12 (citing Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009); Henry v. Milwaukee Cty., 539 F.3d 573, 587 (7th Cir. 2008)). The court also rejected the employee’s claim that her termination was retaliation. First, the court concluded there was not sufficient temporal proximity between Lam’s last conversation about tariffs in September 2019 and her termination in February 2020. Likewise, there was no evidence that the CFO—who made the termination decision—was influenced by the CEO’s disagreement with Lam about the tariffs. Second, there was no evidence that the CFO’s vague statement months before the employee’s termination that she “wouldn’t be here in five years” was connected to the tariff issue. Third, there was nothing suspicious about the timing of the employee’s PIP and subsequent termination; rather, the PIP was designed to address  legitimate performance concerns. Further, the CFO implemented the PIP in response to a directive that all leaders review their employees and implement PIPs if needed. Finally, the court concluded that Springs offered a legitimate reason for the employee’s termination, and the employee failed to present evidence that the CFO did not honestly believe his reasons for firing her. The CFO testified that he terminated the employee because of her failure to address the inventory problem in Mexico. Although the PIP also stated the CFO was unhappy with the way the tariff issue had been communicated, his concerns related to the employee failure to provide necessary context and propose solutions. The Seventh Circuit agreed with the district court that re was no evidence Springs terminated the employee because she reported violations of trade law. Id. at *16-18. Although the Springs opinion leaves open the question of what, exactly, constitutes “harassment” for purposes of FCA retaliation outside of the Ninth and Fifth Circuits, the Seventh Circuit’s reasoning is consistent with the FCA retaliation analysis in those Circuits. The Springs decision is also consistent with employment retaliation cases arising under state and federal civil rights statutes, which generally set a high bar for establishing causation. To stay up-to-date on False Claims Act news, subscribe to Dorsey’s FCA Now Blog today.

Civil litigation by private parties alleging False Claims Act (“FCA”) violations related to Paycheck Protection Program (“PPP”) fraud appears to be heating up.  On September 22, 2021, a former restaurant manager filed a complaint in the Eastern District of New York alleging he was unlawfully terminated from his employment in retaliation for complaining to his employer that it had unlawfully spent its PPP loan proceeds.  The case, Eric Bieber v. Cayuga Capital Management, LLC, Sea Wolf Services, LLC, Jacob Sacks, & James Wiseman, No. 1:21-cv-05268 (E.D.N.Y.), demonstrates not only the substantive FCA risks facing PPP loan borrowers in obtaining and using a PPP loan, but the related retaliation risks under the FCA’s anti-retaliation provisions in 31 U.S.C. § 3730(h) when employees raise concerns about a borrower’s eligibility for or use of a PPP loan. According to the publicly available complaint, defendants owned and operated several trendy New York restaurants and a motel that plaintiff helped manage for several years until the summer of 2021 when he was terminated.  Plaintiff alleges that one of the defendants—defendant Sea Wolf Services, LLC (“Sea Wolf”), a company created to employ the staff working at a related “Sea Wolf – Bushwick” restaurant in Brooklyn—obtained a PPP loan between $350,000 and $1 million to help weather the pandemic.  (Although not alleged in the complaint, the publicly available information online shows that Sea Wolf received a “first draw” loan of $411,217 in 2020 and a “second draw” loan of $575,704 in 2021.[1])  Plaintiff further alleges that approximately one month after receiving the PPP loan, the employee roster for Sea Wolf “included eight individuals who did not work at any of the related Sea Wolf restaurants, but had personal connections to [defendants], including business partners and relatives.”  In sum, plaintiff alleges that defendant Sea Wolf unlawfully spent its PPP loan proceeds to pay the defendants’ friends, family and business associates, rather than on legitimate payroll expenses. Plaintiff’s complaint does not, however, assert substantive FCA violations against defendants for filing false claims against the government for allegedly misusing the PPP loan proceeds.  Instead, Plaintiff’s unique complaint alleges a single violation under the FCA’s anti-retaliation provision in 31 U.S.C. § 3730(h) against defendants for allegedly taking adverse employment action against plaintiff (ultimately terminating his employment) after plaintiff had allegedly engaged in protected activity by complaining about defendant Sea Wolf’s alleged misuse of the PPP loan proceeds.  As part of his requested relief, plaintiff demands damages for front pay, two times the amount of back pay, emotional distress damages, and attorneys’ fees and costs.  Although the available damages under the FCA for anti-retaliation violations is often less than the potential damages for substantive FCA violations (substantive violations allow for civil penalties for each false claim in addition to damages representing three-times the amount of the government’s loss), anti-retaliation claims nevertheless create significant risk.  This is particularly true when emotional distress damages are sought, which can be quite high depending on the conduct involved and the alleged severity of a plaintiff’s emotional distress.  PPP borrowers therefore must be diligent in complying with all of the rules on eligibility, use, and forgiveness of PPP loans to avoid allegations that they presented false claims to the government related to such loans, and, as this new case shows, diligent in responding to employee complaints that they violated the rules of the PPP. [1] See Tracking PPP, Pro Publica, available at https://projects.propublica.org/coronavirus/bailouts/ (last searched September 27, 2021).

Over a vigorous dissent last week, a panel of the U.S. Court of Appeals for the Sixth Circuit vacated a ruling from the U.S. District Court for the Eastern District of Michigan and held the False Claims Act’s anti-retaliation provision protects former employees alleging post-termination retaliation. United States ex rel. Felten v. William Beaumont Hosp., No. 20-1002, 2021 U.S. App. LEXIS 9387 (6th Cir. Mar. 31, 2021). The decision creates a circuit split with the Tenth Circuit. See Potts v. Center for Excellence in Higher Education, Inc., 908 F.3d 610 (10th Cir. 2018) (“We conclude that the False Claims Act’s anti-retaliation provision unambiguously excludes relief for retaliatory acts occurring after the employee has left employment.”). Relator David Felten alleged that William Beaumont Hospital violated the anti-retaliation provision of the FCA for retaliation during and after his employment with the hospital. Felten alleged the hospital retaliated against him by terminating his employment after he filed a qui tam complaint alleging the hospital paid illegal kickbacks to physicians and physicians’ groups in exchange for referrals of Medicare, Medicaid, and TRICARE patients. Felten amended his complaint and further alleged the hospital retaliated against him post-termination by undermining his employment applications to other institutions. In granting the hospital’s partial motion to dismiss the allegations in the relator’s amended complaint, the district court held that the FCA’s anti-retaliation provision does not extend to retaliatory conduct that occurs after termination. In so deciding, the district court relied on the statute’s “terms and conditions of employment” qualifier and concluded the provision applies only to alleged retaliatory conduct that occurs during employment. The district court also certified the question of whether the FCA applies to allegations of post-employment retaliatory conduct for interlocutory appeal. The Sixth Circuit granted the relator’s petition for permission to appeal, and on interlocutory appeal considered the temporal meaning of the word “employee” in the context of the FCA’s anti-retaliation provision. See 31 U.S.C. § 3730(h)(1). The court relied heavily on Robinson v. Shell Oil, 519 U.S. 337, 345 (1997), in which the Supreme Court analyzed the term “employees” in the context of § 704(a) of Title VII of the Civil Rights Act of 1964. The court applied the Robinson framework and concluded the term “employee” in the FCA is ambiguous. Specifically, the court reasoned that the FCA’s anti-retaliation provision has no temporal qualifier accompanying the term “employee,” that the dictionary definition of “employee” can include current and former employees, and that other aspects of the statutory framework—including the remedies and special damages provisions—support a reading that the FCA covers former employees. Because the definition of “employee” is ambiguous, the court continued with an analysis of the broader context and primary purpose of the statute. Analogizing to Robinson, the Sixth Circuit reasoned that the purpose of the statute is to encourage the reporting of fraud and facilitate the government’s ability to stymie crime by protecting those who report it. The court determined: “If employers can simply threaten, harass, and discriminate against employees without repercussion as long as they fire them first, potential whistleblowers could be dissuaded from reporting fraud against the government.” Felten, 2021 U.S. App. LEXIS 9387 at *14. For this reason, the court held that the anti-retaliation provision of the FCA protects former employees from post-termination retaliation. Judge Griffin dissented and voiced frustration at the majority’s creation of a circuit split and divergence from other district courts’ interpretations of the FCA’s anti-retaliation provision. In his dissent, Judge Griffin thoroughly analyzed the statute and considered the Robinson factors, but determined none were present. Finally, Judge Griffin concluded that nothing in the other sections of the FCA indicates the anti-retaliation provision extends to conduct against former employees. Rather, Judge Griffin concluded the statutory remedies are only available to former employees who experienced retaliation during their employment. Based on his analysis of precedent, specifically Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1060 (6th Cir. 2014), and the statute’s plain meaning, Judge Griffin determined the term “employee” in the FCA is unambiguous and applies only to current employees. The majority decision represents a significant extension of employee—that is, current and former employee—protections under the FCA. As with any circuit split, this is an issue worth monitoring for further developments. To stay up-to-date on False Claims Act news, subscribe to Dorsey’s FCA Now Blog today.

A former employee of Great Dane Petroleum Contractors, Inc. a full-service Pollutant Control and General Contractor based in Florida, alleged in a recently-filed lawsuit that the company misused nearly $3 million in Paycheck Protection Program (“PPP”) funds.  See Rucker v. Great Dane Petroleum Contractors, Inc., No. 21-cv-207 (M.D. Fla. Mar. 10, 2021).  As another wave of applications for PPP funds come in, employers must remain vigilant to ensure that PPP funds are used appropriately or risk similar lawsuits. Amber Rucker, who was the personal assistant to Great Dane’s CFO, filed the complaint in United States District Court for the Middle District of Florida on March 10, 2021, under the federal False Claims Act (“FCA”), Florida's Private Whistleblower Act, and Florida’s Public Whistleblower Act.  Her PPP-specific allegations include misuse by approving employee leaves of absence while “keeping them on the books” and altering payroll records to reflect time not worked by employees.  She also alleged that Great Dane paid bribes to procure contracts, allowed its principals to use the company credit card for personal expenses, misrepresented to its worker’s compensation insurance carrier that is was a drug-free workplace, illegally deducted inflated job costs to evade taxes, and allowed certain employees a grossly inflated per diem. According to Rucker’s lawsuit, she repeatedly complained of the alleged illegal acts to Great Dane’s CFO and the President both verbally and in writing.  She also claimed to object to such practices and refused to process fraudulent charges.  Rucker claims that instead of investigating her allegations, Great Dane placed her on paid administrative leave shortly after her last complaint and terminated her in January 2021. Rucker’s suit relies on the FCA’s anti-retaliation clause, which provides that: Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter. 13 U.S.C. § 3730(h).  According to Rucker’s Complaint, this provision prohibited Great Dane’s decision to place her on paid administrative leave.  Rucker is seeking to be reinstated, restitution for her lost wages, front pay, and compensatory damages. Rucker’s allegations are the latest—and surely not the last—in the increasing number of litigation and enforcement actions that have followed the Federal Government’s response to the COVID-19 pandemic.  For example, in December 2020, the Justice Department charged 57 people with trying to steal more than $175 million in PPP funding.  See Katie Benner, Justice Dept. Announces Dozens of Fraud Charges in Small-Business Aid Program, The New York Times (originally published Sept. 10, 2020, updated Dec. 9, 2020), https://www.nytimes.com/2020/09/10/us/politics/ppp-fraud-coronavirus.html. And just a month later, the Department of Justice charged six individuals with fraudulently obtaining approximately $1.5 million in PPP loans on behalf of businesses based in Georgia and South Carolina.  See Justice News (Jan. 28, 2021), https://www.justice.gov/opa/pr/six-charged-connection-3-million-paycheck-protection-program-fraud-scheme.  As the Department of Justice continues to investigate allegations of misuse of PPP loans, companies that accepted PPP funds should ensure that those funds are used for the proper purposes and that any allegations of misuse are investigated without any retaliation.

On February 3, 2020, the U.S. District Court for the District of Utah granted a motion for attorneys’ fees against Plaintiff Kelly Sorenson (“Sorenson”), finding that the claims Sorenson asserted against his former employer under the False Claims Act (“FCA”) were “clearly frivolous” and compensable under 31 U.S.C. § 3730(d)(4). United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co., No. 2:16-cv-875, 2021 U.S. Dist. LEXIS 21561 (D. Utah Feb. 3, 2021). In its decision, the Court emphasized that Sorenson’s claims were “conclusory, unsupported, and/or baseless,” entitling Defendant Wadsworth Brothers Construction Company, Inc. (“Wadsworth”) to “reasonable attorneys’ fees and expenses” incurred over the course of the four-year litigation, including both motion to dismiss and summary judgment briefing. Id. at *3-5. Although courts have long been reticent to deem FCA claims frivolous, this decision may indicate a shift in judicial decision-making with respect to the FCA. In August 2016, Sorenson filed a qui tam complaint alleging that Wadsworth violated the FCA by failing to comply with the Davis-Bacon Act—which requires employers to pay certain wages to laborers on government contracts—when paying his wages on a federally-funded project for the Salt Lake International Airport. Sorenson further alleged that Wadsworth violated the FCA’s retaliation provisions by cutting his hours and terminating him when he raised wage-related concerns to his supervisors. The government declined to intervene. Wadsworth moved to dismiss the complaint in its entirety, arguing that Sorenson had already litigated his wage claims in state court and that the FCA claims lacked the factual allegations necessary to satisfy the Rule 12(b)(6) and heightened Rule 9 pleading standards for fraud claims. The Court largely granted Wadsworth’s motion, dismissing the fraud, false record, false receipt, and conspiracy to defraud claims brought under the FCA. Emphasizing the need for “knowingly” presenting a false or fraudulent claim for approval under the FCA, the Court concluded that a certification of compliance with the Davis-Bacon Act alone was not a material misrepresentation. In so doing, the Court recognized that the FCA is not an “all-purpose antifraud statute” or a statute to be used to punish garden-variety contract or regulatory violations. Similarly, the Court dismissed Sorenson’s claim for conspiracy to defraud because Sorenson did not establish that Wadsworth had made fraudulent misrepresentations under the FCA, and therefore could not establish that Wadsworth had acted with other actors to defraud the government. Sorenson continued to pursue the sole surviving claim—retaliation—and Wadsworth filed a motion for summary judgment in May 28, 2020. The Court granted Wadsworth’s motion, concluding that Sorenson never put Wadsworth on notice of his protected activity and was laid off for normal business reasons. Wadsworth did not stop there, however. Instead, Wadsworth also filed a motion for attorneys’ fees in December 2020 as allowed under Section 3730(d)(4) of the FCA, which provides: If the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. 31 U.S.C. § 3730(d)(4) (emphasis added); see also Docket No. 45 at 4. Although this bar is high, the Court concluded that Sorenson’s suit was “clearly frivolous” because of Sorenson’s failure to fulfill basic elements of an FCA claim, including alleging more than conclusory statements, presenting evidence that Sorenson communicated to Wadsworth that he was accusing them of violating the FCA, and showing some form of retaliation.  On those grounds, the Court granted Wadsworth’s motion and ordered that Sorenson pay “reasonable attorneys’ fees and expenses” under Section 3730(d)(4). This decision illustrates that if the claim does not fit within the specific parameters established under the FCA, a court will not hesitate to dismiss the action as insufficient and unsupported. And if the relator has clearly failed to fulfill basic requirements for an allegation of fraud under the FCA, the relator runs the risk of paying defense fees if the Court finds the claims to be either frivolous or harassing. As made clear in Sorenson, the consequences can be expensive.

On January 8, 2021, in the first appellate decision of the year addressing a False Claims Act case, the Fourth Circuit affirmed the summary judgment dismissal of relators’ claims that a manufacturer of allergenic extracts violated the FCA.  Skibo v. Greer Labs., 2021 U.S. App. LEXIS 508 (Jan. 8, 2021) (per curiam). Like most FCA cases that arrive in the United States Courts of Appeals, this one started many years ago.  In August 2013, two former employees filed a retaliation claim under the FCA against Greer Laboratories, Inc. (“Greer Labs”) for terminating them after they raised concerns that Greer Labs’ “custom mix” allergenic extracts did not comply with Federal Drug Administration (“FDA”) regulations.  In addition to their retaliation claim, the relators alleged a substantive FCA claim against Greer Labs for selling the custom mixes as licensed allergenic extracts to physicians, who then received reimbursement from the government for administering the custom mixes to patients.  Relators contended the physicians’ claims for reimbursement—allegedly caused by Greer Labs—were false because the custom mixes were not licensed allergens and Medicare and Medicaid would not provide reimbursement for unlicensed drugs. The custom mixes at issue in the case were mixes of individual allergen extracts for general use by a physician, rather than patient-specific mixes made pursuant to patient prescriptions.  To sell their products, manufacturers of allergenic extracts are required to obtain licenses from the FDA.  Greer Labs had a general license, but did not seek separate licenses for its custom mixes because it believed the mixes fell under its general license.  Before they were terminated in 2012, relators alleged they had complained to Greer Labs that the custom mixes were violating FDA regulations. The district court granted defendants’ motion for summary judgment and dismissed relators’ claims.  The district court held that relators could not prove that Greer Labs knew that a separate license was required for the custom mixes.  The district court further held that relators had not engaged in protected activity to support their retaliation claim. The Fourth Circuit affirmed, noting that the FDA did not issue formal guidance recognizing that custom mixes required separate licenses under existing regulations until 2015, and that the industry practice prior the guidance was to allow custom mixes without separate licenses.  Because Greer Labs openly acted in accordance with industry practice and the common understanding of the regulatory requirements, the Fourth Circuit agreed that the relators could not show that Greer Labs acted with the requisite scienter.  In addition, the Fourth Circuit held that the concerns relators raised about regulatory compliance—part of their job description—were insufficient to show that relators engaged in protected activity under the FCA because “[a]llegations of regulatory violations are not enough ‘in the absence of actual fraudulent conduct.’”  Skibo, 2021 U.S. App. LEXIS at 19 (emphasis in original) (quoting United States ex rel Rostholder v. Omnicare, Inc., 745 F.3d 694, 702 (4th Cir. 2014)).  The Court found that “[t]he fatal flaw in [relators’] claim is that they never allege that they raised an issue of false or fraudulent conduct beyond a regulatory violation that would constitute an FCA violation.”  Id. at 21. In addition to emphasizing that regulatory violations alone are not FCA violations, the case is an important first-of-the-year reminder of the importance of a defendant’s mental state when evaluating FCA claims.  Since the landmark decision in Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), a lot of attention has focused on the FCA’s materiality requirement.  It must be remembered, however, that Escobar recognized that both of “[t]hose requirements [the FCA’s materiality and scienter requirements] are rigorous.”  136 S. Ct. at 2002.  Rigorous enough, in fact, that cases lacking sufficient evidence of scienter will be dismissed on summary judgment, as in Skibo.

On Monday, the U.S. Court of Appeals for the Eighth Circuit affirmed the Eastern District of Missouri’s dismissal of appellant’s retaliation claim under the False Claims Act, as well as his state law wrongful discharge claim and quasi-contract claims. The decision, Sherman v. Berkadia Commer. Mortg. LLC, No. 19-1373, 2020 U.S. App. LEXIS 11713 (8th Cir. Apr. 14, 2020), is yet another example of the difficult “but-for” causation standard required by the Eighth Circuit—but not all circuits—to establish a prima facie case of retaliation under the FCA. Appellant, Richard Sherman, was a former senior vice president and chief underwriter for Berkadia Commercial Mortgage LLC. Sherman was responsible for a team of underwriters that reviewed mortgages to ensure Berkadia’s compliance with the Department of Housing and Urban Development’s (“HUD”) commercial lending regulations. Sherman’s role required him to voice concerns if his team suspected HUD violations or other wrongdoing. As described in the opinion, tensions arose between Sherman and Berkadia. Eventually, the relationship between Sherman and Berkadia’s production manager became unworkable and Berkadia procured an outside consultant to mediate the situation. When those efforts failed, Berkadia terminated Sherman’s employment. Sherman sued Berkadia alleging, among other things, retaliation in violation of the False Claims Act. Berkadia brought a motion for summary judgment, which the district court granted in full and the Eighth Circuit affirmed. The appeals court concluded Sherman failed to meet his burden of proof necessary to establish a prima facie case of FCA retaliation. That burden required that Sherman show “(1) [he] engaged in protected conduct, (2) [Berkadia] knew [he] engaged in protected conduct, (3) [Berkadia] retaliated against [him], and (4) the retaliation was motivated solely by [Sherman's] protected activity.” Id. at *10 (citing United States ex rel. Strubbe v. Crawford Cty. Mem’l Hosp., 915 F.3d 1158, 1168 (8th Cir. 2019)). The court emphasized, regarding the fourth element, that “[t]he ‘motivated solely by’ causal link required as part of the prima facie case of a FCA retaliation claim is tighter than that required in other types of retaliation and discrimination claims where we use the same McDonnell Douglas framework.” Id. at *11 (citations omitted). It is “tighter” because it establishes “but-for” causation. Id. Moreover, it is especially tight in the Eighth Circuit because “but-for” causation is required at the prima facie stage. Other circuits only apply a “causal connection” or similar standard at the prima facie stage, and reserve “but-for” causation at the final pretext stage. See Garcia v. Prof’l Contract Servs., 938 F.3d 236, 241-43 (5th Cir. 2019) (noting “[t]he circuits are split on this issue,” and holding consistent with the Third and the Fourth Circuits that “the heightened but-for causation requirement applies only in the third step (the pretext stage) of the McDonnell Douglas framework”); Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019) (requiring that “the retaliation was motivated ‘at least in part’ by her protected activity”). In Sherman’s case, the court concluded that he failed to meet the Eighth Circuit’s but-for standard at the prima facie stage because the record evidence showed that Sherman failed to meet Berkadia’s performance expectations, especially with regard to his inability to cooperate with others. Thus, no reasonable jury could find Berkadia fired Sherman “solely” because of activity protected under the FCA. Although Sherman waived his wrongful discharge claim on appeal, the court also held he failed to show that Berkadia’s activity violated “clearly mandated public policy.” This decision serves as a reminder of the Eighth Circuit’s position requiring “but-for” causation to prove a prima facie case in support of a FCA retaliation claim, but also a reminder that not all circuits are as “tight” as the Eighth Circuit on this issue.