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.
asserted
subsidiary → publish → stays
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.
asserted
It → cite → journalists
STAT then wrote about the lawsuit, and many involved touted it online.
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many → write → it
I don’t know whether anyone picked up a phone or how the claims advanced in the litigation were independently corroborated.
uncertain
claims → know → litigation
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.
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I → find → newsroom
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.
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headlines → spend → 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.
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experience → teach → settlement
Then the cycle begins anew.
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cycle → begin → ?
Start with the legal problem, which is plain enough.
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which → start → problem
Federal rules expect a lawyer to investigate a claim before putting a client’s name, and a defendant’s reputation, on a pleading.
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lawyer → expect → pleading
It is somebody else’s work, sometimes excellent, but unverified in the sense the court cares about.
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court → care → sense
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.
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articles → quote → what
Maybe they did and simply didn’t write it down.
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they → do → it
But if so, why would Clarkson repeatedly footnote the news story that started the ball rolling?
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ball → footnote → story
As the RealClear story observes, cribbing from news stories when filing lawsuits appears to be common practice for Clarkson Law.
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cribbing → observe → Law
In the piece, Varney documents three other instances in which Clarkson’s lawsuits footnote news stories as the basis for a claim.
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lawsuits → document → 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.
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it → specialize → 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.
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it → appear → 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?
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you → offer → glasses
If so, your privacy and other rights may have been violated.”
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privacy → violate → ?
In other words, if you bought a pair of sunglasses, you may be entitled to compensation.
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you → buy → 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.
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source → base → story
If reporters dig independently and lawyers do the same, the system works as intended.
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system → dig → same
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.
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publications → choose → STAT
“We do not share drafts of stories with sources before publication,” STAT’s ethics policy states in part.
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policy → share → part
“We require contributors to disclose if anyone but the named author(s) had a role in writing, researching, editing, or instigating a piece.”
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anyone → require → piece
To be sure, nobody has shown the publication of the STAT story and the same-day filing of the federal lawsuit were coordinated.
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publication → show → lawsuit
But nobody appears to have ruled it out, either.
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nobody → appear → it
Meanwhile, the presses rolled and the defendants were hung in the town square.
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defendants → roll → square
And that’s the real harm.
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that → ’ → ?
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.
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STAT → sue → 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.
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judge → begin → complaint
I don’t disagree that some of these companies may deserve it.
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some → disagree → it
Allegations that insurers let software override physicians are serious, and discovery is appropriate.
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discovery → let → physicians
But due process is what separates the guilty from the merely unpopular, and speed is a poor substitute for it.
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speed → separate → it
Everyone in the system understands the incentives.
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Everyone → understand → incentives
Class actions against deep-pocketed defendants settle, often regardless of merit, because litigating through discovery costs more than paying to end a matter.
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litigating → settle → matter
A plaintiffs’ firm that can pair a complaint with a sympathetic exposé gains leverage before filing a single exhibit.
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that → pair → exhibit
Corporate executives, working in a market that rewards quick resolution, are prone to settle early even against weak claims, and lawyers know it.
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lawyers → work → 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.
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settlement → reap → Inc.
…and 19 more, not listed.
The Aporia
