Eleventh Circuit Adopts Fifth Circuit's Knowledge Standard for AKS Scienter
The Eleventh Circuit affirmed AKS convictions in United States v. Chun, adopting the Fifth Circuit's knowledge formulation of the statute's scienter requirement and clarifying what the prosecution must prove.
On August 18, 2026, the Eleventh Circuit affirmed two defendants' convictions and sentences for violating the federal Anti-Kickback Statute in United States v. Chun, adopting the Fifth Circuit's knowledge standard for the AKS's scienter requirement. The decision matters because the AKS reaches broadly through its referral-source and remuneration provisions, and the scienter showing is a principal defense line in prosecutions involving pharmaceutical manufacturers, distributors, and physicians.
Two points drive the practical significance. First, alignment with the Fifth Circuit reduces forum-dependent variation and gives defense counsel a more settled map when weighing where a case will be litigated. Second, because the AKS is effectively strict liability in form, the knowledge requirement is a recurring battleground, and a clarified standard on that element affects what the government must prove at trial and on appeal.
For clients, the near-term implications are concrete: exposure assessments and internal investigations of referral arrangements should be evaluated against the clarified knowledge element rather than assumptions drawn from other circuits.
Watch for the published slip opinion, any petition for rehearing or certiorari, and how other circuits respond, including whether the AKS safe harbor and fraud reducers are litigated against this standard. This summary rests on one secondary source; the opinion itself was not reviewed.