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The Online Version
of the Magazine
of Cornell Law School

 

Fall 2015

 

Volume 41, No 2

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Mark Jackson '85

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Table of Contents Featured Article

Mark Jackson: Defending Freedom of the Press and Exposing Medicare Fraud

by OWEN LUBOZYNSKI | PHOTOGRAPHY by MICHAEL NATHANIEL MEYER | ILLUSTRATION by THE HEADS OF STATE
The Wall Street Journal's Pulitzer-winning investigative series "Medicare Unmasked" uncovered fraud that has cost taxpayers billions of dollars. As Dow Jones Executive Vice President and General Counsel Mark Jackson '85 observes, the series also exemplified a "perfect symbiotic relationship between lawyers and journalists."

The undertaking began back in 2009, when Journal reporters began research for an earlier series on Medicare fraud. "Secrets of the System," a finalist for a 2011 Pulitzer, made use of a sampling of Medicare data obtained from the Centers for Medicare and Medicaid Services (CMS) through, as Jackson puts it,"much wrangling" by the Dow Jones legal department. While the series uncovered suspicious billing and potential abuses, the Journal's coverage was constrained by a court injunction dating back three decades.


In the late 1970s, the Carter administration began publicly releasing Medicare reimbursement data. In response, the Florida Medical Association, later joined by the American Medical Association (AMA), brought suit in a Florida U.S. district court, and in 1979 that court issued an injunction barring the public release of information on the amount of money individual doctors received from the Medicare program. Because of this ruling, Journal reporters investigating Medicare fraud were able to gain access only to a limited subset of Medicare information, and the Journal had to agree not to disclose the identities of individual doctors obtained solely from the database.


ON THE CASE

In 2011, Dow Jones moved to overturn the injunction. As Jackson recalls, the original case files, then over thirty years old, had to be hunted down in a basement.


Jackson says that the argument over the injunction centered on balancing doctors' right to privacy with the public's right to know how its tax dollars are spent. Armed with the material gathered for the Journal's initial series, the Dow Jones legal team had more than abstract arguments about theoretical fraud: they had strong evidence of real, ongoing fraud in the Medicare system.


In May 2013, the district court judge agreed to vacate the injunction. She avoided directly addressing the balance of privacy and public right-to-know, however, basing her judgment instead on shifts in the law during the years since the 1979 decision. She also stopped short of ordering the government to make the Medicare data in question available.


In order to gain access to that data, Dow Jones had to file a new Freedom of Information Act (FOIA) request. CMS's longstanding policy had been to withhold this data by invoking the 1979 injunction, but with that instrument now defunct, the agency opted to solicit public comment on a new data-release policy. While Dow Jones submitted a comment in favor of public release, citing the evidence of fraud already discovered by Journal reporters, the AMA and other interest groups submitted their own comments opposing the release of the data.


OPENING THE VAULT

In March 2014, CMS implemented its decision, a new policy in which exemptions to any FOIA requests would be determined on a case-by-case basis. The following month, the agency sent out a notice to participating doctors that, because of frequent FOIA requests, it would release a year's worth of physician payment data on its website, noting in its letter, "The Department concluded that the data to be released would assist the public's understanding of Medicare fraud, waste, and abuse," and citing the Journal's prior coverage as an example. This newly released information reached the public through stories in media outlets large and small across the country.


While the data was available to everyone, the Wall Street Journal had a leg up thanks to its previous reporting. Its extensive, indepth coverage of the new information combined sophisticated data analysis with old-fashioned gumshoe reporting. The result was a series of articles that uncovered nearly $60 billion in bogus Medicare payments each year. One piece, for instance, reported on pain specialists billing Medicare to test for cocaine, PCP, and other drugs rarely used by seniors; another exposed a high-profile laboratory that paid doctors for the blood samples they sent to be tested; yet another investigated outliers who collected far more in Medicare payments for a single procedure than any other providers.


The series led to congressional inquiries and criminal charges. It won the 2015 Pulitzer Prize for Investigative Reporting. And it alerted the public to a slew of Medicare abuses that had been kept secret for decades.


BEHIND THE BYLINES

In his broad role as chief legal officer, Jackson oversaw and worked to fund the legal aspects of the Medicare investigation, while day-to-day legal work on the project was handled by Senior Vice President, Deputy General Counsel, and Chief Compliance Officer Jason Conti and, starting in 2013, Assistant General Counsel Jacob Goldstein.


"We have a very strong group of press attorneys," says Jackson, noting that, for Dow Jones lawyers, getting government agencies to release information is just part of the job. What distinguished the "Medicare Unmasked" project, he explains, was the scope of both the effort and the payoff. While the pace of the news cycle typically dictates quick legal skirmishes, this project was a five-year battle. It was a bigger fight for a bigger body of data, requiring patience and perseverance. "There were many rounds of struggle, and in the end they came out in our favor."


"But make no mistake," Jackson adds. "This was even more a journalistic victory. Without the original groundbreaking work of our journalists and the amazing job they did once the full data was released, our legal victory would've been fairly hollow."


Wall Street Journal editor in chief Gerard Baker tells us: "Without Mark's guidance, unstinting support, and legal expertise, the Wall Street Journal's reporters wouldn't have had the material needed to produce the 'Medicare Unmasked' series. Throughout his tenure at Dow Jones, Mark has been a crucial proponent of freedom of the press here in the U.S. and around the world, fearlessly defending editors and reporters against both official and private efforts to thwart our journalistic endeavors. He's also a well-rounded presence in the newsroom, serving as, among other things, a committed supporter of a number of New York charitable and philanthropic causes, and as Dow Jones's resident expert on jazz."


NEWSPAPER MAN

Jackson's memories of growing up on Long Island include mornings delivering issues of his father's newspaper. Paul Jackson owned and edited two local papers early in his career and later went on to a career at the New York Post, where he became the publication's travel editor. Freedom of the press was a prominent theme in family lore, as in the story of Jackson's father once clashing with officials in Long Beach, Long Island, who were attempting to close a city council meeting he was covering-he insisted on staying, arguing that the public had a right to know about the council's proceedings.


"Journalism was very much in the blood," says Jackson. But his father didn't want him to be a journalist; he wanted him to be a lawyer. Becoming a press attorney, he says, was his compromise.


"I came to law school with a passion for the First Amendment and a deep-seated indignation when people were deprived of the right to speak or receive information," he recalls. "My classes at the Law School, regardless of the subject matter, sharpened my ability to think critically and in a disciplined way. Taking classes with smart and challenging professors like Robert Kent (Federal Courts) or Sheri Lynn Johnson (Criminal Law) provided me with the tools to channel that passion and indignation and make myself a more effective advocate for my eventual clients.


"In my second year of law school, I was also fortunate to do research for a visiting professor, Jamie Cameron at Osgoode Hall in Toronto, who was writing about the development of First Amendment jurisprudence, focusing on Charles Evans Hughes and Oliver Wendell Holmes. That research, and Justice Holmes' famous dissent in Abrams ('The ultimate good desired is better reached by free trade in ideas') fit entirely with what I was thinking about at the time."


After his second year at the Law School, Jackson applied to be a summer associate at Squadron, Ellenoff, Plesent & Lehrer, because he saw that the firm represented a New York City newspaper. After graduation, he returned. He was cautioned that he wouldn't necessarily get his hands on a lot of the First Amendment work at first. As it turned out, he was assigned a First Amendment case almost immediately, and he continued to work on such cases during his seven years as an associate and five years as partner, a tenure during which he also frequently found himself in the newsroom reviewing stories.


THE SCENIC ROUTE

A year after graduating from the Law School, Jackson married fellow Law School alum Karen Hagberg '84, who had been his Legal Aid supervisor when he was a second-year student. Hagberg also found work at a New York City law firm, and in 1997, she was asked to lead the litigation department at the firm's Tokyo offices. They decided to make the move, and Jackson spent the next three years, and then two more, as a full-time dad, learning Japanese and exploring his new surroundings with his daughters.


"I thought, 'That pretty much wraps up the law,'" recalls Jackson. "Who takes five years off?" Upon his return to New York, he intended to begin work on a book about his experiences as an expat and a full-time male parent. As he sat down to begin his first day of writing, however, he got a call from the legal department of HarperCollins, asking if he could fill in for three months while one of their lawyers was on maternity leave. Jackson ended up staying with HarperCollins for five years, translating his press law experience to the field of nonfiction publishing.


When HarperCollins's parent company, News Corp, acquired Dow Jones and the Wall Street Journal in 2007, Jackson was brought on as Dow Jones's general counsel. In this role, he supervises twenty-two lawyers and oversees legal work for the company's dozens of media outlets. "To be frank, this is just about the perfect job for me," he says. Through a circuitous and unpredicted route, he has landed in the sort of position he had dreamed of as a law student.


In Jackson's achievements, Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law, sees an example of the versatility of Cornell lawyers. "One of the things we try to teach our students at Cornell is that their law degree opens doors to a breathtaking array of career opportunities. And one of the things that businesses of all shapes and sizes have increasingly come to recognize is the centrality of lawyers to the success of their core business. Business lawyers are not just specialists who serve their clients in the traditional domains of transactions and litigation. And Mark Jackson's role in helping Dow Jones succeed in its core business of reporting the news-helping them to win a Pulitzer-illustrates the breadth and importance of the in-house lawyer's evolving role."


Throughout Jackson's education and career, the First Amendment, and particularly freedom of the press, have been a guiding light. The legal accomplishments that propelled the Journal's Medicare investigations have been, he says, the most public manifestation of that commitment, as well as "sort of a shining example of what we seek to do as press attorneys." Defending freedom of the press isn't all FOIA bonanzas and Pulitzers, though. It's also the largely invisible yet crucial work Jackson and his colleagues do every day.


"This is the business we're in," he says. "There's nothing more rewarding for lawyers like us than to support journalists in work that educates the public and holds the government to account."





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