The False Claims Act Public Disclosure Bar and the Meaning of “News Media”

What is Meant by “News Media” Under the False Claims Act?

Under the False Claims Act, 31 U.S.C. 3730(e)(4)(A)(iii), “the court shall dismiss an action or claim . . . unless opposed by the government, if substantially the same allegation or transaction as alleged in the action or claims were publically disclosed from the news media.”  Because “news media” is not defined in the act, the courts have frequently been called upon to determine what is meant by that term.

First, the courts had to consider what printed material beyond newspapers would constitute news media. It was held that “The term ‘news media’ includes scholarly, scientific, and technical periodicals, including trade journals, because, like newspapers, these sources disseminate information to the public in a periodic manner,” U.S. ex rel. Radcliffe v. Purdue Pharma, L.P., 582 F. Supp. 2d 766, 770 (W.D. Va. 2008) rev’d in part sub nom United States v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir. 2010), citing United States ex rel. Alcohol Found., Inc. v. Kalmanovitz Charitable Found., Inc., 186 F.Supp.2d. 458 (S.D.N.Y.), aff’d, 53 Fed.Appx. 153 (2d Cir.2002); United States ex. rel. Bartz v. Ortho-McNeil Pharmaceuticals, Inc.,  856 F. Supp. 2d 253, 264 (D. Ma. 2012).

Are Advertisements “News Media” Under the False Claims Act?

The courts were then called upon to determine if advertisements could qualify.  Noting that this issue presented “a much closer question,” the court in United States ex. r el. Colquitt  v. Abbott Laboratories, 864 F. Supp. 2d 499, 518 (N.D. Tx. 2012) concluded that advertisements in periodicals were from the news media.  It looked in part to cases decided by the United States Supreme Court that referred to the broad sweep of the public disclosure bar, see, Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 130 S.Ct. 1396, 1404, 176 L.Ed.2d 225 (2010); Schindler Elevator Corp. v. United States ex rel. Kirk, —U.S. —-, 131 S.Ct. 1885, 1887, 179 L.Ed.2d 825 (2011).  It specifically agreed with the conclusion in United States ex rel. Ondis v. City of Woonsocket, R.I., 582 F.Supp.2d 212, 217 (D.R.I. 2008) that the public disclosure bar did not require the information “appear in any particular form or section of a [publication].”  Accord, United States ex. rel. Osheroff  v. Humana Inc., 10-24486-CV, 2012 WL 4479072 at * 6 (S.D. Fl. Sept. 28, 2012).

Is the Internet Considered “News Media” Under the False Claims Act?

Given the proliferation of material from electronic sources, numerous cases raised the question of whether such sources fell under the meaning of “from the news media.”  A variety of electronically available information has been considered.

Generally, information published on the internet has been held to be a public disclosure so long as the websites are readily accessible. See U.S. ex rel. Green v. Serv. Contract Educ. & Training Trust Fund, 843 F. Supp. 2d 20, 32-33 (D.D.C. 2012) ((“there is no evidence or contention that access to the website was limited to SCETTF or LIUNA members of that the website was in any other way restricted”); United States ex. rel Repko v. Guthrie Clinic, P.C., 2011 WL 3875987, aff’d 2012 WL 3104883(3rd Cir 2012) ( material in question disclosed on several different websites including Guidestar, Bloomberg Professional and Standard & Poor’s); United State ex. rel Doe v. Staples, Inc. CIV. 08-846 RJL, 2013 WL 1192982 (D.D.C. Mar. 22, 2013); United States ex rel. Unite Here v. Cintas Corp., No. C 06-2413 PJH, 2007 WL 4557788, at *14 (N.D.Cal. Dec. 21, 2007) (“[t]he ‘fact’ of the contracts between [defendant] and the federal government was publicly disclosed in the news media, as that information was available on the Internet”).

Is Wikipedia “News Media”?

In United States ex rel. Brown v. Walt Disney World Co., No. 6:06-cv-1943-Orl-22KRS, 2008 WL 2561975, at *4 (M.D.Fla. June 24, 2008) aff’d, 361 Fed.Appx. 66 (11th Cir.2010) (per curiam) the court found that a Wikipedia website qualified as “news media”.  The Walt Disney Worldopinion is interesting because there is no way necessarily to determine the accuracy or source of what is posted on Wikipedia; cf., United States ex rel. Radcliffe v. Purdue Pharma, L.P., 582 F. Supp.2d 766, 772 (W.D.Va., 2008) (noting that not everything posted online would automatically constitute a public disclosure”).

What is Not News Media on the Internet Under the False Claims Act?

There is one case that puts some limits on what is deemed accessible on the Internet, United States ex rel. Liotine v. CDW Gov’t, Inc., No. 05-33-DRH, 2009 WL 3156704, at *6 n. 5 (S.D.Ill. Sept. 29, 2009).  Because several steps had to be taken to locate an article archived on a University’s purchasing services website, the court found that a publication was not a public disclosure by the “news media.”

Although information from the Internet will likely be considered a public disclosure under the “news media” section of the public disclosure bar of the False Claims Act, further analysis is required before a  determination can be made as to whether the case should be dismissed.  The court must consider whether the disclosure is of the same allegations or transactions alleged in the action.  If it is, under the statute, consideration must then be given to whether the relator is an original source of the information.

Read about all the state and federal laws related to successful claims under the False Claims Act.

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