One firm's lawsuits 'echo' investigative media reports

Many Americans may be losing trust in journalism, but attorneys at the Clarkson Law Firm are apparently not among them.

In recent years, the Southern California-based firm filed at least four class-action lawsuits in federal courts that appeared to rely heavily on investigative articles published by ProPublica, STAT News, and other news outlets. Most of the suits came on the heels of negative stories about some of the country's biggest health insurers, including UnitedHealth Group, Cigna, and Humana. Facebook's owner, Meta, also seems to have come into Clarkson's crosshairs following a news report about privacy concerns regarding its high-tech eyeglasses.

Clarkson, which advertises itself as a "public interest law firm," was also quick to amend suits by adding plaintiffs that appeared in the articles, most of which alleged insurers were cheating Medicare patients through AI algorithms that denied patients care.

Legal experts say this pattern raises questions because attorneys are generally required to conduct their own inquiries before filing class action suits. News reports are considered hearsay, so filing suits largely based on them is forbidden by the rules of procedure that govern federal courts.

"Relying solely on an article in a newspaper, journal or other publication would not satisfy the class action requirement," said Arthur Landry, a veteran insurance defense attorney in famously litigious Louisiana. "The class actions against the health insurers in question for alleged wrongful denial of claims appear on their face to be based entirely upon publications, and there is no reference in the suits to counsel having attempted to verify the contents of the articles."

"The apparent connections between the publications and the lawsuits, including close time relation between the press coverage and the filing of pleadings, raise serious questions," he told RealClearInvestigations.

While RCI found no evidence that Clarkson and the news outlets coordinated their efforts, the repetitive timeline of stories and lawsuits, stories about the lawsuits, and social media doubling or tripling each gives the appearance of an operation rather than individual efforts, a pattern that has become a modern-day loop used by those looking to influence public policy not just on health care but other major issues such as artificial intelligence, global warming and the like. When the work of nonprofits, academic researchers, and other groups that share the same public policy goal is added, there is a cascade effect that makes their position more formidable.

Same-Day Coverage

One of the most striking examples of this dynamic started on March 13, 2023. That day, STAT News, a respected online outlet that focuses on healthcare and is available only with a subscription, published the first in a series of articles on alleged attempts by UnitedHealth to deny coverage, expensive hospital visits, and the like to its Medicare Advantage patients.

Eight months later, on Nov. 14, 2023, STAT published another article in the series, which would become a finalist for the Pulitzer Prize in investigative reporting, reporting that a UnitedHealth subsidiary, NaviHealth, used an AI algorithm to try to shorten patients' rehabilitation stays to boost profits.

On that same day, Clarkson filed a lawsuit against UnitedHealth that largely recounts the March and November stories. The lawsuit footnotes the STAT articles eight times in the 45-page filing. Two of the footnotes refer to the STAT story published that same day in November.

The lawsuit also repeats language in the Nov. 14 article. One paragraph in the Nov. 14 lawsuit involves an allegation STAT published that day, namely that NaviHealth "set a target for 2023 to keep rehab stays within 1 percent of the days projected by the algorithm," thereby turning something reported that day into a pleaded factual allegation.

The lawsuit also appears to have cribbed language from STAT's March article. STAT's claim that company algorithms "compare a patient's diagnosis, age, living situation, and physical function… in a database of six million patients" and that they were used "to pinpoint the precise moment when they can plausibly cut off payment" are repeated verbatim in Clarkson's filing.

Later in the complaint, Clarkson alleges the algorithm's "generic recommendations fail to adjust for a patient's individual circumstances and conflict with basic rules on what Medicare Advantage plans must cover," the exact language STAT used in March.

STAT did not respond to RCI's questions about whether they were in contact as the articles were being prepared, and Clarkson declined comment. STAT's investigative pieces do not mention Clarkson.

After the lawsuit was filed, STAT published – again on Nov. 14, 2023 – a story boasting its work had been the basis for the litigation, and all parties trumpeted their work on social media posts, thereby achieving the cascade effect and creating a public relations crisis for UnitedHealth.

More Piggybacking

These compressed timelines and similar language in lawsuits and stories create a fine legal line. Dane Ciolino, an ethics expert at the Loyola University of New Orleans Law School, said the crux of the situation is how the information may be shared or its release coordinated.

"If journalists independently investigate health insurers, lawyers monitor those investigations, identify injured people, independently verify the allegations, and bring meritorious claims, I see nothing inherently objectionable from a legal ethics standpoint," Ciolino told RCI. "That is one mechanism through which wrongdoing gets exposed."

"But if the evidence eventually showed that lawyers and journalists jointly selected subjects, exchanged sources, coordinated publication and filing dates, developed allegations together, or deliberately used journalism to create ostensibly independent corroboration for litigation," he said, "that would be a materially different situation."

Although the same-day timing of the news article and lawsuit is unusual, RCI found other instances in which Clarkson lawsuits piggybacked on investigative journalism. Among the other instances were the following:

* On March 25, 2023, ProPublica and Capitol Forum published a joint investigation into Cigna's PXDX system, essentially software that allowed the insurer to process large numbers of medical claims without individualized review. Four months later, on July 24, Clarkson Law filed a class action against Cigna, citing the ProPublica story, which alleged in some instances the insurer's doctors rejected patient claims without even opening their files. That case remains active with a discovery deadline of Sept. 30.

* STAT News then covered the July 24, 2023, lawsuit, quoting Clarkson partner Ryan Clarkson and reproducing the complaint for readers. The law firm also issued its own press statement, meaning there were now four entities – three media outlets and Clarkson Law – with the same message.

* On Dec. 12, 2023, Clarkson filed another class action based on the STAT's coverage, this time in Kentucky against Humana. It alleged that Humana used the same AI algorithm as UnitedHealth to determine, and often deny, additional care patients might need. This time, court papers cited STAT's stories six times, and once again STAT covered the lawsuit the day it was filed, and all the players trumpeted their actions on social media. This suit remains active, though parts of it have been dismissed.

* Last March, just days after an investigative report in Scandinavian outlets that workers at a Kenyan company reviewed all the data gathered by Meta's Ray-Ban AI glasses – including private nudity – Clarkson sued in California, footnoting the obscure outlets to a U.S. audience.

Curious Connection

Although RCI uncovered no proof of coordination between Clarkson and the news outlets, there is a financial thread that runs through this effort to impact the health insurance industry, which helps pack an even bigger punch when woven together. Many of the players involved – though not Clarkson – are funded by Arnold Ventures, part of the tax-exempt Laura and John Arnold Foundation that has roughly $4.7 billion in assets. Arnold Ventures lists "health" as one of six areas in which it seeks to "maximize opportunity and minimize injustice."

On health, a spokesperson pointed to their website where Arnold Ventures' goal sounds noble but nebulous. It "aim(s) to improve health care delivery, lower costs, and reduce disparities in access." The spokesperson declined to specify if a single-payer system of government-run health care is the goal of such advocacy.

In pursuit of its aims, Arnold Ventures has become one of the largest philanthropic players in health care policy and nonprofit journalism, records show.

In 2022, it said it had provided $46 million to nonprofit newsrooms. ProPublica received at least $3.68 million from the Arnold Foundation between 2020 and 2024, according to tax records. Arnold also announced $5.75 million in grants to ProPublica and the Texas Tribune for investigative work in 2019, although it's not clear if all that money has been distributed as Arnold Ventures has changed from a non-profit charity to a limited corporation and thus specific grants are no longer public.

STAT News listed Laura and John Arnold as "changemakers in health and medicine," and the couple penned an op-edfor the outlet. STAT noted the couple had "directed a river of cash over the last decade toward think tanks, researchers, lobbyists, and political candidates pushing for lower drug prices."

As STAT's description of the philanthropic couple noted, the Arnold's Action Network Initiative has also generously funded nonprofits focused on health care. The Network Initiative is a "major partner" of the Center for Medicare Advocacy, and has worked closely on projects with the Center for Health and Democracy, led by former health care executive Wendell Potter.

Here, too, connections emerge. In a deposition to a separate data breach lawsuit, an Oklahoma nurse named Derek Dawes said that he became a plaintiff and a whistleblower in Clarkson's United Health suit after a Center for Medicare Advocacy attorney had introduced him to both Clarkson attorneys and STAT reporters.

The testimony does not establish that the various groups were operating as a single unit. It does indicate, however, that the law firm, news outlet, and nonprofit were aware of each other's activities.

Cascade Effect

Journalism's changing landscape is also a factor in these layered maneuvers to build a cascade effect. At a time when the public's trust in the media hovers near record lows, the once clear lines separating objective news outlets from partisan and interested parties are blurring, particularly for those outlets that rely on donors rather than advertising and subscription money. Journalism can then appear as one cog in a larger campaign to impact public policy, through lawsuits, congressional interest, and the like. (RCI is also largely funded by donors to the RealClear Foundation.)

Examples abound, especially those that rely on government officials cited as "informed" and "highly-placed" anonymous sources – to advance partisan goals under the guise of objective journalism. While alleging collusion between Donald Trump and Russia, for example, Hillary Clinton's 2016 campaign shared opposition research it bought against Trump with media allies who did not disclose its origin in their original reporting. The Clinton campaign, in turn, cited the news reports as independent evidence of its opponent's corruption.

Earlier this month, Parker Thayer, an investigative researcher for Capital Research Center, uncovered a similar dynamic in the public debate over artificial intelligence. In that case, the Wall Street Journal reported a blockbuster story that a researcher at the AI company Anthropic had resigned because of fears the technology was an existential threat to humanity. But the appearance of the story and the employee's announcement to his small social media audience were minutes apart, and then quickly amplified by players in the hypercompetitive AI world with millions of followers. Thayer's work indicated that the resignation was not just an act of conscience but likely part of a coordinated campaign, a development the Journal acknowledged in subsequent reporting.

Media outlets invariably deny that their funding in any way influences their content. In many cases, such as Real Clear, reporters do not discuss stories with donors, who are largely anonymous to the editorial department. Editors at both ProPublica and The Guardian told RCI they have covered a topic of considerable public interest with no preconceived political aim and without consideration of funding or coordination with other entities.

ProPublica said it receives funding from tens of thousands of sources and does disclose this when it feels appropriate to stories.

"ProPublica's newsroom operates with fierce independence," a spokesman told RCI. "Our investigations aren't driven by partisan or ideological agendas. No donors or board members are made aware of stories before they are published. They do not have a say as to which organizations we partner with or which stories we pursue. They see our stories when the public sees them."

Some experts in the field of journalism ethics also said that on the surface the situation does not seem problematic, instead reflecting the common sharing of information between attorneys, nonprofit organizations and others with reporters.

"The bottom line here is that, in my opinion, the idea that there's some sort of coordination among journalists, academics, activists and attorneys is pretty much of a stretch, if not downright ludicrous," said Kim Walsh-Childers, a journalism professor at the University of Florida. "There are far more likely explanations for the relationships you're seeing."

Furthermore, given the mood of some of the nation, UnitedHealth and the other insurance providers that comprise "Big Health" may not appear as sympathetic victims when confronted with investigative stories, lawsuits, non-profit reports and congressional oversight – a point raised by Walsh-Childers and others in their responses.

"It's only natural that nonprofit advocacy groups and even attorneys periodically provide reporters with story leads and assistance," said Dan Axelrod, chair of the Society of Professional Journalists' Ethics Committee. "But transparency is the lifeblood of ethical reporting, and prominent disclaimers need to be on stories about organizations that have donated to the news outlet covering them."

"The problem isn't so much that advocacy groups and plaintiffs' attorneys want to seed the media with story ideas that advance their causes," Axelrod told RealClearInvestigations. "The problem is that news outlets face valid credibility questions when they fail to prominently disclaim when they've accepted money from those they're covering, even when the donation doesn't bias the reporting."

This article was originally published by RealClearInvestigations and made available via RealClearWire.

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