On Nov. 14, 2023, STAT News published an investigation into how a UnitedHealth subsidiary used an algorithm to shape the length of Medicare Advantage rehab stays. By the end of the same day, a class-action complaint against UnitedHealth was on file in federal court. It cited STAT reporting from its March and November articles repeatedly, in some circumstances adopting framing strikingly similar to that used by the journalists themselves. STAT then wrote about the lawsuit, and many involved touted it online.
I don’t know whether anyone picked up a phone or how the claims advanced in the litigation were independently corroborated. A recent RealClearInvestigations piece by James Varney found no proof that the firm behind the suit, Clarkson Law, coordinated with any newsroom, and I wouldn’t claim otherwise. But having spent several years as the target of frivolous litigation brought by a high-profile former DOJ lawyer who represented the leader of a separatist group Nigeria’s government designated a terrorist organization, acted as counsel for Edward Snowden’s one-time estranged father, and was recently blocked by a U.S. federal court judge from entering a case on behalf of deposed Venezuelan dictator Nicolas Maduro, I know something about how headlines are used to advance dubious litigation, seek visibility, and peddle controversy.
My experience has taught me to recognize a pattern: story, complaint, story about the complaint, online amplification, a press conference implying that where there’s smoke, there must be fire, and sustained pressure aimed at settlement. Then the cycle begins anew.
Start with the legal problem, which is plain enough. Federal rules expect a lawyer to investigate a claim before putting a client’s name, and a defendant’s reputation, on a pleading. A news article is not an investigation, no matter the source. It is somebody else’s work, sometimes excellent, but unverified in the sense the court cares about. A defense attorney quoted in the Varney piece observed that the complaints against the insurers showed no sign counsel tried to confirm what the articles said. Maybe they did and simply didn’t write it down. But if so, why would Clarkson repeatedly footnote the news story that started the ball rolling?
As the RealClear story observes, cribbing from news stories when filing lawsuits appears to be common practice for Clarkson Law. In the piece, Varney documents three other instances in which Clarkson’s lawsuits footnote news stories as the basis for a claim. The firm, which specializes in class-action litigation, even footnotes a Swedish newspaper report in its mass-tort suit against Meta Platforms Inc., which it accuses of running a data security scam out of Kenya of all places. The suit doesn’t appear to advance the case against Meta beyond the newspaper report; it was filed a week after the article’s publication.
Clarkson’s own website offers a primer on how to build a class action case from scratch: Linking to a story about the original story, the website asks, “Did you buy Meta AI smart glasses or were you recorded? If so, your privacy and other rights may have been violated.”
In other words, if you bought a pair of sunglasses, you may be entitled to compensation.
Federal rules of civil procedure are clear: Lawsuits can’t be based on hearsay, which is the very definition of a news story, no matter how credible the source. If reporters dig independently and lawyers do the same, the system works as intended. If lawyers and journalists choose targets together, trade sources, or schedule releases so a story appears to corroborate a case, that is a violation of journalistic ethics, something publications such as STAT anticipate and forbid. “We do not share drafts of stories with sources before publication,” STAT’s ethics policy states in part. “We require contributors to disclose if anyone but the named author(s) had a role in writing, researching, editing, or instigating a piece.”
To be sure, nobody has shown the publication of the STAT story and the same-day filing of the federal lawsuit were coordinated. But nobody appears to have ruled it out, either. Meanwhile, the presses rolled and the defendants were hung in the town square.
And that’s the real harm. A company sued the same day it’s exposed in the press doesn’t get to answer the story first; in fact, it’s often treated to a second helping when the publication writes a story about the filing of the lawsuit, as STAT did — also on the same day. And so, the cycle begins: publicity about the lawsuit, the follow-up, the congressional letter, the social media barrage, and the cable segment — all in short order, with much of the damage done before a judge has even read a complaint. I don’t disagree that some of these companies may deserve it. Allegations that insurers let software override physicians are serious, and discovery is appropriate. But due process is what separates the guilty from the merely unpopular, and speed is a poor substitute for it.
Everyone in the system understands the incentives. Class actions against deep-pocketed defendants settle, often regardless of merit, because litigating through discovery costs more than paying to end a matter. A plaintiffs’ firm that can pair a complaint with a sympathetic exposé gains leverage before filing a single exhibit. Corporate executives, working in a market that rewards quick resolution, are prone to settle early even against weak claims, and lawyers know it.
Meanwhile, the plaintiffs in these mass tort cases reap little as individuals, as Clarkson’s recent proposed settlement with computing giant Apple Inc. demonstrates. In that case, Apple agreed to settle a deceptive advertising claim by making “presumptive” payments of $25 to most of the plaintiffs. By contrast, Clarkson could well reap millions of dollars when attorney fees are decided in a few months.
But the news of the suit holds the value for activists, not the merits of the case. Here, Varney’s piece goes further, tracing a financial thread that fosters an ensuing media ruckus when class-action lawsuits are filed. In the case of STAT’s story about UnitedHealth, a related case against Humana Inc., and a third Clarkson lawsuit filed against Cigna Corp., the RealClear piece notes that Arnold Ventures, one of the largest funders in health policy and nonprofit journalism, has a financial relationship with some of the publications and nonprofit groups that report on and publicize these lawsuits. The result is a publicity ecosystem that benefits everyone except the defendants in the lawsuit.
To be clear, funding is not coordination, and the news outlets say donors never see stories in advance. I have no reason to disbelieve them. But Dan Axelrod, who chairs the Society of Professional Journalists’ ethics committee, identifies the real issue. His concern is less that donors bend coverage than that outlets often fail to disclose related-party relationships between policy activists and news outlets. Readers can weigh a conflict they can see. They can do nothing with one that’s undisclosed.
PFIZER SAID ‘NO IMPACT ON FERTILITY.’ THE DATA SAID ‘WE DIDN’T CHECK’
In academia, those of us with tenure enjoy the privilege of confidently opposing groundless claims, but all are not so fortunate. Our responsibility? My colleagues and I complete outside-activities paperwork annually and disclose the names of the donors who support our work. Disclosure costs nothing, yet it buys credibility.
The remedies are within reach. Reform the pleading rules. Demand transparency about funding. And insist journalists investigate and lawyers litigate without collaborating on lawsuit targets. Courts exist to test claims, and newsrooms exist to test facts. When these lines are blurred, the public loses its ability to trust either.
Ivan Sascha Sheehan is the interim dean of the College of Public Affairs at the University of Baltimore, where he is a professor of public and international affairs. The views expressed are the author’s own. Follow him on X @ProfSheehan