What is meant by news media under the False Claims
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.
Are advertisements "news media" under the False Claims
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 from the 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
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 World opinion 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
What is not news media on the internet under the Flase Claims
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
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
Read here about all the state and federal laws related to
successful claims under the False Claims Act.
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For further reading:
Anti-Retaliation Provision of the Federal False Claims Act
Successful Fraud Claims Under the False Claims Act Require More
Than Just Allegations
False Claims Cases to take Action On
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