Announcer: SJC-12973.
Commonwealth of Massachusetts from the relator,
Johan Rosenberg, v. JPMorgan Chase & Company and others.
-: Attorney Singh.
-: Thank you, may it please the court.
This case calls on the court to interpret as a matter
of first impression the language
of the public disclosure bar provision
of the Massachusetts False Claims Act.
This provision is modeled after a provision of federal law
that's designed to deter and prevent parasitic
or opportunistic False Claims Act actions,
which means cases where the qui tam relator,
the plaintiff, is trying to take a piece
of the government's recovery for a fraud
without adding anything meaningful
to the fraud recovery effort.
In this case, my client, the relator,
became independently suspicious
that the defendants were defrauding the government
in connection with the remarketing of certain bonds.
And he performed an independent forensic investigation based
on data he purchased.
This investigation involved over 1,000 hours
of labor reviewing over, around 5 million data points
relating to over 20,000 bonds.
And based on that, concluded that
there was a high likelihood that fraud
was occurring and brought this action.
He also-
-: Counsel, counsel, I don't mean to interrupt you,
but I'd like to get right to that point.
You mentioned in your, the verbiage used
was that your client purchased it.
And the factual basis of your client's complaint is four
and a half years of data that was publicly available
on industry websites and on the EMMA website.
And so to get squarely to the point,
even though you might've paid an access fee, isn't this,
doesn't it rest on substantially similar transactions
that are expressly contemplated
by the public disclosure bar?
-: No, your Honor, and that's for two reasons
The first one is the EMMA website.
And I think this is probably the easiest basis
on which the court could reverse,
is the public disclosure bar only applies to disclosures
that occur in the enumerated channels in the statute.
And the question here is whether the EMMA website,
which is a government website run by the MSRB,
the Municipal Securities Rulemaking Board,
is the news media.
And I think no one would say it is under the way
we ordinarily use that language.
That is what a court in California-
-: But counsel, don't you run into problems in saying
that nobody would weigh it this way or read it this way
when, as you started your argument, our statute is modeled
under the federal statute and the federal courts
have all interpreted it, or at least the ones
that have been cited and certainly relied on
by Judge Kaplan below all interpreted
as including publicly available websites?
So the notion that nobody would interpret it
that way when the courts, the federal courts
have interpreted that way doesn't seem to be persuasive.
-: Your Honor, that's not a correct characterization
of the federal cases.
So let me just say, there's only one case about, well,
there's two cases now that have talked about
whether EMMA is the news media, the California case
that we included in our addendum to the brief, which was-
-: Can I stop you there, because I didn't wanna focus
on EMMA per EMMA, I wanna focus
on publicly available websites.
So is it your contention
that there are federal courts interpreting
the federal statute that have found
that publicly available websites
are not included in the news media?
-: Yes, your Honor, we've cited two of them to you.
The first one is the Integra Med Analysis case.
That's a case from the Central District of California,
which concluded, which is the decision
that we rely on most heavily in our opening brief.
And that case said not everything
on the internet will qualify.
You should ask whether it's news media
as the term is ordinarily used and provided several indicia,
including does the site resemble traditional news media?
Does it gather information, exercise editorial judgment
about what to publish and then publish it,
which EMMA doesn't, and similar guideposts
that we don't think EMMA falls under.
The second decision that I'd recommend to you
is one that we cited in our roll 16L letter.
And that's our, I believe December 22nd letter.
And that one is the Silbersher versus Allergan decision.
So that, the website in that case was PAIR.
It was the Patent Application Information Retrieval system,
a government website like EMMA, where regulatory filings
or patent filings are basically regurgitated
by the government on a publicly available website.
And the court said, no, this does not look like news media,
this is not news media, again, by adopting the rule
that when you have a statute that doesn't define a term,
you're going to use the ordinary meaning of the term.
And the ordinary meaning of news media generally
does not include websites like EMMA that involve,
that are run by the government that just put out tables
and tables of data with no news
or editorial content whatsoever.
I mean, one way you could even think about it,
and I don't want you to adopt this rule,
'cause this is broader than it needs to be,
but the fact that EMMA falls outside this rule
is pretty good for us.
If the First Amendment would not protect a website,
there's a pretty good argument that it's not the news media.
And in this case, EMMA is really a creature
of the regulatory apparatus of the federal government.
If Congress passed a law tomorrow saying no more EMMA,
I don't think there would be any problem with that.
Contrast that with The Boston Globe, the New York Times,
which obviously you couldn't have, now,
news media is narrower than just
what the First Amendment reaches,
to be sure, that's our argument too.
There are other things that we would use
in ordinary speech to decide if something is news media.
But at absolute minimum, I think it's pretty clear.
And I would say also just hearkening back
to this California decision, it was based
on a published appellate case in California
called Bartlett versus Miller.
And in that case, the court decided that EDGAR,
which is the Securities and Exchange Commission's website
that, like EMMA, regurgitates the securities filings
of publicly traded companies, was not news media either.
The court actually said wherever the fuzzy line is
between websites that are the news media
and websites that aren't the news media,
we're quite confident that EDGAR is not there.
Now, that the defendants in this case
have really no good answer-
-: Can you finish that thought, because why?
EDGAR is not there because why?
-: Oh, sure.
Because, again, news media has
a pretty settled ordinary meaning.
It's the professionals who report
on current events to the public.
And EDGAR, all EDGAR does is exactly what EMMA does.
It takes the filings that are required
by regulation to be submitted by issuers
and then it reproduces them for people to see.
But there's no editorial judgment.
There is no news reporting of any kind-
-: I'm asking specifically with regard to that case,
that was the analysis, that was the rationale,
it was because there was no editorial aspect of the posting?
-: I think that's right, your Honor,
so it's not entirely clear what all
of the factors the court was relying on are,
but the court very clearly stated,
I'm paraphrasing it very closely when I say,
it said, wherever the line is, this is not close to it.
And that's because, if you use these websites,
you know that they don't really resemble the news at all.
They're not what you would think of
as a place where you'd go, and what's I think very helpful
for us is that EMMA-
-: Right, not a place you would go for what?
Can you finish that thought, not a place
that you would go for-
-: For your news, you don't wake up in the morning and say,
I'm reading the news, I'm getting on EMMA to look
at tables of data about interest rate resets.
-: But you wanted to know about what company X is doing,
you would look at their SEC filings.
So that can't be the test.
So what is your test for what is the news-
-: You might well do, your Honor,
but at the same time, here's another,
let's take a company, let's take,
McDonald's, the fast food chain.
You might look at their SEC filings,
you might also go to the McDonald's website.
But I don't think people would say
that the McDonald's website is the news media.
Just to be clear, it doesn't, the statute does not say
if it is news.
-: I'm trying to figure out what test you would apply
for the news media.
What is it, I know when you think it's not.
What is it?
-: Sure.
So if I had to just phrase the rule,
I would say the court should hold that the phrase
the news media takes its ordinary meaning,
which is professionals who report on the news to the public.
That is the news media, when people talk
about the news media, they mean these folks who do this
for a living, who gather news and report the news.
And that, there may be, I will acknowledge,
there may be hard cases at the boundaries
where you're trying to decide, is this particular website,
Joe's blog or something, is this the news media
or is this not the news media?
Right, and you would have to decide those hard cases.
But I don't think EMMA falls anywhere near the hard cases.
And that's because it really is not designed
to report the news to the public, it's designed to gather
and reproduce the regulatory filings of issuers.
-: But counsel, don't we at this point,
considering where we are with the internet and websites,
need a new definition of what news media is?
-: Your Honor, I think if that were true,
that definition really needs to come
from the legislature and not from the courts.
I think what's happened in some of these cases
is that the courts have said, look,
we think we're gonna construe news media broadly
to include every readily accessible website,
because they're designed to disseminate information
to the public.
That is not really what Congress intended
when it passed the federal statute,
nor the general court when it enacted this statute.
And the statute was updated as recently as 2012.
So it's not as if the internet was a new phenomenon.
If the legislature wanted to say internet,
it would have been very easy to say internet either in 2012
or when Congress updated the federal statute in 2010.
The internet was in widespread use at the time.
And so I don't think it can be right
that every readily accessible website trying
to provide information to the public counts.
Again, the McDonald's company website,
you just wouldn't call it news media.
And by the way, this is also just supported
by the basic canon of statutory construction.
That when we have a term that's not defined,
we use the ordinary meaning.
And if the legislature (indistinct) give it-
-: I apologize, please finish your answer,
I thought you were done.
-: Oh, I would just say, if the legislature wants
to give it a special meaning, it certainly can do so, right.
There is no reason the legislature
could not make this pellucid.
And I think if there's ambiguity here,
then the other rules of statutory construction
that matter are the ones that say
let's construe remedial statutes in favor of recoveries
and let's construe the exceptions
to those statutes relatively narrowly.
Reading news media as broadly as possible runs contrary
to those settled principles as well.
-: So Mr. Singh, let's just assume,
because you've only got a little time left.
Let's just assume for the sake of my question
that EMMA falls within the definition of news media.
I wanna get to original source.
And 'll sort of tell you why I'm asking before I ask you,
I'm having a hard time figuring out the answer to that based
on this record and a motion to dismiss
and my limited knowledge of municipal bonds, I have to say.
And even getting my arms wrapped around exactly
what you call robo-resetting as it relates to remarketing.
But if we are dealing with the news media
and the situation is that this raw data
was actually publicly disclosed, and you want to say, well,
look at this value added that my client gave,
this raw data just isn't useful
without this forensic analysis that my client did.
And so he's an original source.
How do I know that, how do I possibly understand that
from the papers, where, I mean,
assume I have an aptitude for it, which I don't.
How do I figure out the answer to that,
whether it's an original source?
-: Sure thing, your Honor.
So I'll point out, there are, I'm gonna speak
to your question directly.
There are two reason, there are two arguments we make based
on the sort of what's out there in the public domain.
The first is that it doesn't actually disclose
the relevant fraud.
But I'm assuming for purposes of your question
that you've gone past that step.
And now we're at just whether there is an original source.
To argue that we're an original source,
there are two requirements.
We have to have knowledge that is independent of
and materially adds to the publicly disclosed allegations
or transactions.
And we have to disclose that information
to the government before filing the case, I think
the first requirement is really what we're talking about.
Is the knowledge independent?
So we know that the data was acquired independently
of the public source.
We know that all of the analysis done on the data-
-: Counsel, counsel, can I interrupt you with that answer?
But you say that, but in your complaint,
although you alleged that there were multiple kind
of insiders that your client spoke to,
the complaint only alleges that he spoke
to one Bank of America employee.
So how do you say that?
So when it seems to suggest that
it's really all publicly available information
that your client relied on.
-: So your Honor, I just wanna be very clear
about what I'm talking about here,
which is not the conversations
with the insiders, but the data itself.
So as you noted in your first question, Justice Georges,
the data, even if we, you said, even if we purchased it,
isn't it the same as what's in the public domain?
And to some extent, it's similar to a part
of what's in the public domain.
But the point that we got it independently
actually matters here.
And so for purposes of whether the knowledge is independent,
that's part of it.
The other part of our independent knowledge,
there are two other parts, is what I would describe broadly
as the expertise and labor and analysis.
And then the third part is the conversations
with the industry insiders.
And I'll speak to that as well if I can.
But on the second part, which is what I think
is a critical piece of this, is to determine
whether knowledge materially adds,
I mean, this is a fuzzy statutory term,
but it's designed, I think, to be flexible.
I think you would look at this in context and you would say,
okay, you have this data on EMMA,
these tables of information.
And could you, looking at that,
in for a fraud without doing a ton of labor?
The answer is, and having a ton of knowledge?
And the answer is no, you can't.
Now, there's a couple of reasons why.
First, the data on EMMA is actually, in the form you get it
on EMMA, not terribly usable at all.
EMMA, for example, does not allow you
to scrape the data wholesale using AI
or bots or anything like that to get it.
If you wanna get a dataset
that you can actually run models on,
that you can actually analyze in meaningful detail
to do the type of analysis we did in this case,
you actually have to get it from the MSRB
through another channel.
You have to buy it the way we did.
You can't just copy and paste it, it doesn't work that way.
Especially not for the quantities
of data that we're talking about here.
And it would violate EMMA's terms of use to do so.
So that's one-
-: How do I know that?
How do I figure that out from this record?
Because there's all sorts of cases saying that,
because you've added, you've got value added
to the VRDOs data on the EMMA website.
No doubt, you've added some value here
with all of your experience and proprietary methods.
But what you just said, how do I know that from the record?
-: Sure, so if, I guess my answer would be,
if you don't know that from the record, you should rule
in our favor, because this is a motion to dismiss
on the pleadings and this is an affirmative defense.
And so if they want-
-: So should it be a summary judgment with depositions
and affidavits, and some poor superior court judge
is going to then write an opinion about
whether this is value added or not?
-: Your Honor, the need to write that opinion would arise
whether it's at the pleading or the summary judgment stage,
I think it's going to be decided.
But I think, yes, I think if this is a question
on which you think the record is underdeveloped,
then the straightforward answer is that,
for purposes of pleading an affirmative defense,
the defendants haven't done it.
And so we would, the case would go on and they would try
and present the case that we have not added value.
And we would try to argue that we have.
Now, as to whether, as a matter of law,
something materially adds, I think that's,
the word material is a pretty ubiquitous term in the law.
And I think it refers to just whether you've done something
not immaterial, that is something
that moves the needle a bit.
And I think it's very hard to say
that we haven't in this case.
The analysis that we did was, as I said,
it's not just collating the data in a way that's important.
It's then doing the forensic analysis,
and the analysis is complex.
The analysis involves considering, as I said,
over 20,000 bonds, almost five million data points.
And there was a court in Illinois
which considered a parallel action to this one
that concluded that my client is an original source
for precisely this reason.
Nobody, no, I'll put it this way.
One of the arguments the defendants are sure to make
when they get up for you in just a moment
is that the application of expertise
to publicly available information alone just
doesn't get you there.
And I think that's wrong, but even if it's right, nobody,
no matter how expert, could look at the data on EMMA
and come up with the conclusions that my client did.
You needed the labor as well,
the substantial amounts of additional analysis.
And that extra work is valuable.
And just as we talk about what the False Claims Act
is designed to do, what the public disclosure bar
is designed to do, it's not designed to discourage people
from spending thousands of hours helping the government
redress frauds on the government,
it's designed to encourage that behavior,
to enlist the citizenry to get us out
of this hole of fraud that the government finds itself in.
And the idea that the only people who should be rewarded
are people, and here's a problem that I think comes up,
if you want me to just identify, and I know I'm over time,
so I'll end with this unless there are other questions.
If I had to identify the taproot of the mistakes that happen
in interpreting the False Claims Act,
it's that people make an unwarranted negative inference.
They say, oh, this statute is designed to reward insiders
who come forward with insider information.
And from that, they draw the negative inference
that actions by outsiders based on expertise, hard work,
and honest inquiry into what's going on are disfavored.
And that's just not right.
What Congress wanted
and what the Massachusetts legislature wanted
was a robust anti-fraud enforcement effort
which enlists the entire citizenry to help.
And so when you're construing terms like
does this materially add, is this independent,
were these allegations disclosed, you'll want to pay,
I think, very close attention to the idea that this
isn't really about knocking all the outsiders out.
It's about knocking out the parasitic
and opportunistic cases where all the information
is really right there and all somebody has done
is repackage it into a False Claims Act complaint.
That is not this case.
In this case, you couldn't have gotten here
without tons of extra labor and knowledge and expertise.
-: Does anybody have any other questions?
Great.
Male Speaker: No, thank you.
-: Thank you.
Let's move on to Attorney Hochman.
Morning.
-: Thank you, good morning, your Honors,
and may it please the court, Rob Hochman on behalf
of Morgan Stanley and presenting argument
on behalf of all the defendants.
I'll just start with the general observation
that Justice Wendlandt made at the outset,
which is the case law lines up entirely in our favor
in this case on three settled,
really settled principles of law,
and they've been settled, with respect to news media,
for as long as the internet has been in existence.
And with respect to the argument that adding analysis
to publicly disclosed historical facts
since at least the 1986 amendments.
First, when all the historical facts
on which relator's claims are based
have been publicly disclosed, and that is this case,
the relator, and the relator merely analyzes those facts
in some way he considers unique,
the public disclosure bar applies.
And relator here added no facts to the public, none.
He offers only his assertions
after he analyzed publicly available facts.
And Mr. Singh try to make it sound
like his analysis added something.
It may have added his spin, but he added his spin only,
the relator added his spin only to publicly available facts.
And I wanna set one thing absolutely clearly aside on this.
If you go to the second volume of the appendix pages 195
to 196 of the transcript, this was after a dogged effort
by Judge Kaplan to get the relator, to pin down the relator,
what did you rely on?
He said he relied on the information from EMMA.
That is true as a matter of fact.
We heard today about other data that he had to pay for,
it's the same data, it's just a different-
-: But counsel-
Dalila: Yeah.
-: Thank you, Justice Wendlandt.
Doesn't he spend 1,000 hours
analyzing 20,000 individual bonds?
I mean, how does that not materially add
to the raw interest rate information
that was publicly available on EMMA?
-: Well, two things to say about that.
First of all, the case law lines up 100%
for a hard and fast line distinguishing between analysis
on the one hand and historical facts on the other.
What has to, what you have to materially add
are historical facts.
That's the rule.
And that has been the rule, that's the rule,
it doesn't matter whether you're talking
about substantially the same transactions
or whether you're talking about original source.
Ondis from the First Circuit,
Stinson from the Third Circuit,
the JDJ case from the Southern District
of New York I specifically commend to you,
because more or less every argument you heard today while,
and every argument you've heard in the brief
has been specifically addressed by that JDJ case
in the Southern District of New York.
And that rule is hard and fast for a good reason.
Because you can allege complicated analysis,
but everybody agrees that facts in the public domain
are never going to say something like I've committed fraud.
There's always an act, there's always an element
of inference involved.
And how is a court, as Justice Lowy was getting at,
how is the court supposed to understand
when you've crossed the line from sufficiently sophisticated
to not sufficiently, to insufficiently sophisticated
or too simplistic?
There's nothing in the statute to guide you on that.
The phrase materially add, by the way, Justice Georges,
occurs only with respect to the original source.
And the phrase is actually materially adds
and is independent and materially adds, both.
And the one thing we know here, you don't have
to talk about materially adds.
Because the one thing we know with 100% certainty
is it's not independent.
It is an analysis of the very data
that has been publicly disclosed.
-: Mr. Hochman, what do you say about the plaintiff's view
that the 2010 amendment changes the nature
of the public disclosure analysis
and that now it's an affirmative defense?
Does that throw out some of the precedent
that you just went through?
-: Those amendments throw out none of the precedent
I went through, your Honor, for two reasons.
First of all, the statutory language upon which
that precedent is based was unchanged
by the 2000 amendments.
The 2000 amendments removed the phrase based on
from the basic statute, but we are,
but the reason it did that was
to resolve a conflict in federal courts of appeals.
And the Fourth Circuit had taken a somewhat unique view.
And what they put in its place
is substantially the same transactions,
which is the very standard upon which we're relying.
And that, by the way, contrary to relator's suggestion,
that was the broader, that actually was the broader view
of the public disclosure bar, so it's not as if Congress
and the Massachusetts legislature following Congress
has been taking a uniform step to narrow
the public disclosure bar in the way Mr. Singh suggested.
Sometimes they broaden it, sometimes they narrow it.
They're constantly trying to find a delicate,
the proper balance between, on the one hand,
permitting private entities to ferret out fraud,
and on the other hand, not just,
by the way, parasitic lawsuits,
but lawsuits where others come in and attach themselves,
force the government to engage
in investigations that are premature.
Might even, I would, I hasten to add, and that, by the way,
the Findley case from the DC Circuit talks about this.
And I would hasten to add also you have
to find the right balance to ensure
that there aren't harassing lawsuits,
because what we're talking about here are parties
that are engaged in contractual relationships
with the government.
And that there's a kind of litigation tax,
because it's so easy by virtue of clever pleading
to take publicly disclosed information
that could be presented to the government,
they can make their own decision.
But you wave your hands and claim
that you've done some kind of magic analysis.
And by the way, statistical analysis is not,
I mean, I don't doubt the relator's expertise here.
As I said, expertise in the case law
is 100% insufficient to-
-: Counsel, can I interrupt you for a second,
'cause I think we're getting into policy issues
and I really wanna stick with the statutory language.
Why is it that news media, I get the federal courts have,
except for these two that the relator
has brought up, interpreted news media
to include publicly available websites.
But it seems to me persuasive that publicly, that news media
is narrower than publicly available websites.
That if somebody wanted to include those websites,
they could have expressly said so and not said news media.
-: Well, two things to say about that,
and when the amendments were adopted in 2010
and the federal in 2012, it's not like
the internet didn't exist.
They didn't change-
-: Right, but I don't see how that helps you.
-: Well, but the cases had already started
to recognize, uniformly, again, uniformly without exception
that publicly available websites,
that is the phrase that's used.
Publicly available websites designed
to provide information to the public,
I think that's an important qualification, it's the purpose.
We are not here. and I think the relator spends a lot
of effort to characterize our position
as everything on the internet is news media.
That is not our position.
You do not have to rule that way
and we don't think that would be a correct ruling.
And in fact, we've cited cases,
Simpson from the District of New Jersey,
which talks about informal message boards
and community forums, that's not news media.
Liotine from the Southern District of Illinois,
which talks about an internally directed newsletter
of a university website, that's not news media either.
But what makes this case, and I agree, by the way,
with Mr. Singh that there might be hard cases.
He talked about private company websites like McDonald's.
The fact is that case law has often said
that private company websites are news media.
But this case is easy, I think, and here's why.
Nobody doubts that trade publications are
and should be considered with the news media.
The Radcliffe case from the Western District of Virginia,
which says published scientific articles
and trade journals are news media.
Doe v. Staples, which is a private company data collection
of shipping manifests, news media.
And the reason why that's so it's quite obvious.
It's not that news is always generally everybody
is interested in it, like election news
or some national election news.
There's a lot of news that is niche, that is specific
to a specific industry, and news
and trade publications serve that function.
And if you look at pages 37 and 38 of our brief,
you'll see exactly why the MSRB created EMMA.
And the fact is, what the MSRB is doing is indistinguishable
from trade publication information.
Sometimes, what you want from a trade publication
is not somebody's spin, that's not the only kind of news.
A lot of times, and especially
in the decentralized news media world we live in today,
what you really want from the news is,
as they say, just the facts.
Just the facts.
You can make up your own mind.
And sometimes, news media is putting out just the facts.
And that's exactly what's going on here
and what you'd expect from something
that's akin to a trade publication.
And so for that reason, your Honor,
we think this is actually an easy case.
And we think, for what it's worth,
and we've gone through this in our brief,
that even the relator's favorite case, Integra Med, which,
by the way, I don't actually think really changes
the territory all that much,
because it doesn't actually apply its own analysis
in that case, if you read all the way to the end.
But even if you did and you applied it
to what the MSRB's decision to collect
and publish this information on EMMA,
what you find is that there's nothing
about working through those factors that leads
to the conclusion that EMMA is not news media,
quite the contrary.
Trade publications are traditional news media
and EMMA is like a trade publication.
It's a traditional source of information
for interested parties in the municipal securities market.
The information is made widely available,
as everybody agrees.
The specific trading information issue,
it's just like stock quotes in a newspaper, as we've argued,
and stock quotes are just facts.
But of course, when newspapers publish stock quotes,
nobody would doubt that those specific pages
of the newspaper don't count as news media,
of course it does.
And so it wouldn't be a stretch at all,
even in common parlance, as Mr. Singh suggests,
to refer to the MSRB's decision
to publish the information on EMMA as news media.
And even if you go through-
-: Counsel, can I ask you a question?
Because this isn't entirely policy,
it's also the interpretation of the statute.
So if we follow your logic that it reports just the facts,
and all of these facts in aggregate form mean a whole lot
of nothing to people that don't have any inside baseball.
And to the point of Attorney Singh's brief,
the governments can't be at all places at all times.
So if you don't have interested members
of the citizenry saying, I'm going to take all
of these facts, these thousands and thousands of pages
and blind items of facts and distill them
and analyze them and see if I can do
what I know the government just practically can't,
doesn't it frustrate the whole purpose of the statute
if we construe it the way that you're asking us to?
-: I don't think so, your Honor.
And that's for two reasons, again, first, because the notion
that specialized knowledge, and now I'm just gonna read
from Findley, a quote from Findley,
the DC Circuit case from 1997.
If a relator merely uses his or her unique expertise
or training to conclude that the material elements already
in the public domain constitute a false claim,
then a qui tam action cannot proceed.
This has been the rule from the start, and it's not,
it's because this is the only way to prevent the balance
from tilting too far in the other direction.
Justice Lowy asked specifically about
how courts are supposed to figure out what is enough magic,
enough expertise, and the courts have already sides on that.
They said, this is not a question for the courts.
And when Congress and the Massachusetts legislature
addressed the statute, they didn't try
to introduce this morass of trying to figure out
how much expertise should count.
Instead, what they did is they left it where it belongs.
And this is, I think, an important answer
to your question, Justice Georges.
It belongs with the attorney general.
The attorney general has the right to intervene,
they get shown this case.
They can have, they can sit down with the relator
and try to understand.
The attorney general has access, can make,
has access to much better resources
to evaluate the information, Justice Lowy.
And as a result, the attorney general can not only make
the decision about whether to intervene,
but even if the attorney general doesn't want to intervene,
the attorney general can also just basically say,
if it wants, as it did in Illinois,
the Illinois case that Mr. Singh referred to,
was up on review at the order of the Illinois Supreme Court,
that original source ruling was gonna be reviewed.
And the Illinois attorney general said, you know what?
I've made the decision properly given to me in the statute
that the original source exception shouldn't apply here.
That's in the Massachusetts statute also.
So I, my suggestion is leave this judgment where it belongs.
It's up to the attorney general.
The attorney general here has chosen not to intervene.
They're better equipped to handle it.
And the courts ultimately just can't do the job.
It's just gonna be, at least can't do the job
on the basis of the statutory language that we have now.
If the Massachusetts legislature can sit down
and figure out a form of words that's gonna enable them
to figure out how much expertise does it.
And anyone, again, anyone, Justice Georges,
can say, oh, I worked thousands of hours,
20,000 data points, blah, blah, blah.
Computers can do a lot of data points and a lot
of data analysis on the basis of an algorithm awfully fast.
We know that now.
And Justice Wendlandt, I get the sense
you're gonna ask a question, so-
-: I was actually gonna ask permission from the chief,
is that, can I ask one more question there?
-: Yeah, of course.
-: So one of the things that your brother pointed out
was that the interpretation of the judge below
really leaves outsiders, limits these qui tam actions
to insiders and leaving outsiders out.
What is your response to that?
-: I don't think that's true.
Outsiders can add facts.
Look at the Kennard case from the Tenth Circuit.
The Kennard case dealt with the mining royalty rates.
And what the Kennard case involved was not an insider,
it was just somebody who actually was familiar
with neighboring land mining royalties
and how they've been paid and had a chance to look
at the publicly disclosed information.
From the publicly disclosed information
about the mining royalties paid to the government,
in that case, a Native American tribe, you wouldn't know.
It's only by the comparison of the other information
that he had.
And so, and sometimes, look, I don't deny
that an investigation from outside
might reveal non-public historical facts.
But the line is historical facts,
not my sophisticated analysis.
That line is settled in the cases, it's,
the legislature has chosen not to cross that line.
And if that line needs to be crossed because big data
and the world has changed and so on and so forth,
then the legislature should amend the statute
and provide a workable judicial standard
for drawing that distinction.
Until then, leave it with the attorney general.
-: Let me ask, yeah, I actually have a question for you.
Given the fact that we're interpreting our statute
that was passed by our legislature.
And I understand you've got a lot of cases from,
interpreting the federal statute.
Why shouldn't we just look at the plain meaning
of what news media means, because that's
what's in our statute, and as a court,
as we're supposed to do, interpret that
and decide what it means?
-: Well, as an initial matter, I don't actually think
that if you interpret the plain meaning of news media,
you'd get a different outcome,
you're certainly free to do so.
But our view is that under the plain meaning of news media,
as I said, trade publications are news media
and EMMA functions as a trade publication.
And ultimately, what you'd find is that the plain language
of news media is fairly broad.
It just means information of interest
to the public disseminated through any particular channel.
And that covers, comfortably covers
publicly available websites designed to provide information.
And I hasten to add also, I wanna be clear about this,
because a lot of this is made in the reply brief.
We do not, you do not have to say and we do not believe
that PACER is, it has to be news media.
That doesn't have to follow.
What PACER is doing is different than collecting information
from others and making public what wasn't previously public.
Court dockets had been public forever.
And all PACER does is save me the trouble of having
to wander down to the federal courthouse
to get that court docket, it's like a bridge from my house,
from my computer to the court clerk's office.
And that's all, that's different.
That's a little bit more like a forum, as I said earlier.
This is altogether something about the decision
that was made by the MSRB to collect this information
for the specific purpose of enabling the public
to look at it and make judgements
and make decisions about how to interact with this market.
-: And anybody can do that.
Rob: And anybody can do that.
-: And just again, why is this something that should be cited
on a motion to dismiss as opposed to letting it go further
to say whether or not that...
-: Well, because the only reason that's been given
for going further would be to inquire
into the sophistication of the analysis,
and as I said from the start, the sophistication
of the analysis is just not a question
that the statute asks courts to answer.
And that's the hard line.
And Chief Justice Budd, let me just also add that,
with respect to whether the Massachusetts courts
should interpret its own statute, of course it should.
But I think it's actually fairly important, and I think one
of the amici for the relator emphasize this point,
to keep the state statutes aligned with the federal statute,
both in terms of their language and their interpretation,
not only for consistency in the law,
which is generally desirable, but also because
of the relationship between the federal
and state government in a variety of programs.
-: All right.
Thank you, gentlemen.
That'll conclude our oral argument for today,
thank you so much.
-: Thank you, your Honors.