Haar v. Nationwide Mut. Fire Ins. Co., 918 F.3d 231

Haar, an orthopedic surgeon, treated patients insured by Nationwide and submitted claims; Nationwide denied or partially paid several claims and filed a complaint with the NY Office of Professional Medical Conduct (OPMC).
OPMC investigated and ultimately took no disciplinary action against Haar.
Haar sued Nationwide alleging, inter alia, bad-faith/malicious reporting in violation of N.Y. Pub. Health Law § 230(11)(b).
The district court dismissed Haar's § 230(11)(b) claim, concluding the statute does not create a private right of action.
New York appellate courts are split: the First Department (Foong) held § 230(11)(b) implies a private right, while the Second Department (Elkoulily) and a Southern District decision (Lesesne) held it does not.
Because the New York Court of Appeals has not squarely resolved the question and state appellate authority is split, the Second Circuit certified the dispositive question to the New York Court of Appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.Y. Pub. Health Law § 230(11)(b) creates a private cause of action for bad-faith or malicious reporting to OPMC	Haar contends the statute permits an implied private right of action against those who maliciously report to OPMC	Nationwide argues the statute immunizes good-faith reporters and was not intended to confer a private remedy; creating one would frustrate legislative purpose and confidentiality scheme	The Second Circuit certified the question to the New York Court of Appeals instead of deciding it, because state precedent is split and the question is determinative

Corsair Special Situations Fund, L.P. v. Pesiri, 863 F.3d 176 (2d Cir. 2017) (federal court’s de novo review of state statute interpretation and reasons to certify state-law questions)
Michalski v. Home Depot, Inc., 225 F.3d 113 (2d Cir. 2000) (predicting how state’s highest court would resolve ambiguous state-law issues)
Schlessinger v. Valspar Corp., 686 F.3d 81 (2d Cir. 2012) (three-factor test for recognizing implied private rights under New York law)
Lesesne v. Brimecome, 918 F. Supp. 2d 221 (S.D.N.Y. 2013) (holding § 230(11)(b) does not create a private right; concerns about chilling complaints and confidentiality)
Foong v. Empire Blue Cross & Blue Shield, 305 A.D.2d 330 (N.Y. App. Div. 1st Dep’t 2003) (holding § 230(11)(b) implies a private right of action)
Elkoulily v. N.Y.S. Catholic Healthplan, Inc., 153 A.D.3d 768 (N.Y. App. Div. 2d Dep’t 2017) (holding § 230(11)(b) does not create a private right)
McBarnette v. Sobol, 83 N.Y.2d 333 (N.Y. 1994) (discussing § 230(11)(a) purpose to encourage complaints)