What Is News?
The False Claims Act has long barred relators from litigating claims that are based upon public disclosures in the "news media." But in today's internet age, with the proliferation of blogs and websites packed with information, the question of what exactly "news media" is under the FCA's public disclosure bar is not so straightforward.
Last week, a district court from the Central District of California tackled that issue in United States ex rel. Integra Med Analytics LLC v. Providence Health & Services, No. 16-1694, 2019 WL 3282619 (C.D. Cal. July 16, 2019). In Integra, healthcare provider defendants moved to dismiss a non-intervened qui tam on public disclosure bar grounds based, in part, on information about the business practices of one defendant—a consulting company that advised the hospital defendant on diagnostic coding procedures—that was available from online sources. Those sources included sites operated by defendants and industry groups as well as an online message board. In a long and detailed opinion, the court analyzed what types of online information should be considered "news media" that could potentially bar a relator's FCA action.
The court first ruled that not everything on the internet qualifies as news media. It began with the dictionary definitions of "news" and "media," which "suggested" that news media means a method of communication used to convey information "about recent events or that would otherwise commonly be found in a newspaper, news broadcast, or other news source." Id. at *11. The court observed that common sense precluded a conclusion that restaurant menus, the price of Dodger tickets, or other similar pieces of information on the internet constitute news media.
The court then dove headfirst into the difficult question of what qualifies as "news media" under the public disclosure bar. The judge outlined five guideposts or factors to consider in answering that question. First, one must consider whether the information concerns "recent events or other information that would commonly be found in a newspaper, news broadcast, or other news source." Id. at *14. Second is the extent of editorial independence of the publishers. Under this factor, one should examine whether the publisher "curates [the] information" or "simply publishes information about itself." Id. Third is whether the source intends for the information to be disseminated widely. Fourth is whether the conveying of "newsworthy" information is the "primary purpose" of the source. Id. at *15. And fifth, one should consider whether at least some people would consider the source news media. Taking note of blogs in particular, the court noted that at least "some people" would describe them as news media sources (maybe even this one!). Id.
After articulating these factors, the court put the issue back to the parties concluding that it did not have enough evidence and briefing about the specific online information at issue to apply those factors to the facts of the case.
The court's discussion about "news media" in the Integra case is more extensive than most past FCA opinions and is likely to have an impact beyond this case. Still, there is plenty of room for debate about what is, and what is not, news.
Note: The district court has since certified the question for interlocutory appeal to the Ninth Circuit. The question certified is "whether all online information is disclosed from the 'news media' such that it would fall under the public disclosure bar of the False Claims Act." The Ninth Circuit has accepted interlocutory review and we will continue to follow this case in 2020.
© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.