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As debate in the US continues over mandatory arbitration clauses that have led to private adjudications, a new film focuses attention on the use of private forums and sealed proceedings to resolve matters of potential public importance.

Spotlight, starring Michael Keaton, focuses on the team of investigative journalists from The Boston Globe who exposed sexual abuse by Roman Catholic priests. The movie takes its name from The Globe’s ‘Spotlight Team’ of investigative reporters.

As stories about investigative journalism go, Spotlight is not All the President’s Men. It is not so much about a team of reporters finding the facts on their own as it is a story about reporters struggling to pry the facts – and story – loose from attorneys who have settled their cases in private forums or who are litigating with key documents sealed by confidentiality orders.  In Spotlight, it is the lawyers who have put the facts and story together; but it is a story that they must keep to themselves.

In a line that explains the rationale for transparency of the judicial and legislative process, Justice Brandeis notes that sunshine is the best disinfectant. Court proceedings that seemingly involve only private interests may very well have public import. For example, cases alleging sexual harassment and employment discrimination, even when brought by a single plaintiff, may involve conduct that is pervasive and thus relevant to others who might muster the courage to step forward and vindicate their own rights. Matters litigated in the sunshine may cause private entities and government oversight bodies to take action to protect against prospective injury. But for the work of the Spotlight Team, the pervasive nature of egregious conduct would not have seen the light of day.

Public litigation in the United States has brought to the surface facts that make cars safer, workplaces more tolerable for protected classes and the air we breathe less dangerous to human health. It does not even take a court ruling or jury verdict to make the point – information that comes to light during the litigation process may fuel legislative oversight and/or regulation. This is not merely a collateral benefit; it is the way the system is supposed to work. And – as Spotlight reminds us – there is a real benefit to a transparent system of justice.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

In settling False Claims Cases involving pharmaceutical industry misbranding and kickbacks, are State Attorney Generals leaving money on the table? The answer is maybe.

Most FCA settlements compensate for lost Medicaid and Medicare dollars. Left out of the mix are losses incurred by state and municipal health and welfare funds. Undoubtedly the money left on the table is not insignificant.

Why does this occur? One reason is that most state AG’s assign investigation of pharma fraud to Medicaid Fraud Control units. And larger investigations are coordinated among state AG’s through the National Association of Medicaid Fraud Control Units (NAMFCU). The result seems to be that no one is watching out for the interests of  public employee health and welfare funds at the state and federal level.

With public employee health and welfare funds strapped for cash and looking to meet rising drug costs, the oversight is not immaterial. It is an oversight that should raise questions from health and welfare fund trustees. Public employee unions which bargain for dollars to fund healthcare costs should pay particular attention. Where a municipal fund needs cash to make ends meet, the shortfall generally means that workers will get the short end of the stick when it comes time to negotiating a new labor agreement.