Vertex Pharmaceuticals Incorporated v. Department of Health and Human Services, et al.

As in Skilling, McDonnell, Kelly, and Snyder, the government presses an overbroad reading of an anti-corruption statute. Here, the purported crime is merely helping patients access medically necessary treatment without suffering permanent infertility. The Anti-Kickback Statute (AKS) makes it a felony to willfully “solicit[] or receive[] any remuneration (including any kickback, bribe, or rebate) * * * in return for purchasing” federally insured goods or services or to “offer[] or pay[] any remuneration * * * to induce” such a purchase. In Hansen, this Court held that “induce” in a criminal statute presumptively carries its criminal-law meaning of “criminal solicitation.” Applying Hansen, the Ninth Circuit held that the term “remuneration * * * to induce” reaches only “wrongful” influence, consistent with the Fifth and Seventh Circuits. Here, the D.C. Circuit joined the Second and Fourth Circuits to read “induce” to mean mere “influence,” the standard in the AKS’s civil analog, but did not import the civil statute’s exception for promoting access to healthcare. Despite the resulting absurdity, the court of appeals held that petitioners could face criminal liability under the AKS for conduct that Congress shielded from even civil penalties. The question presented is: Whether “remuneration (including any kickback, bribe, or rebate) * * * to induce” in the criminal AKS means the same as “remuneration * * * to influence” in its civil analog, but without any exception for programs that promote “access to care,” criminalizing conduct Congress expressly protected from civil liability.