Mississippi Takes On Experian

As victims of identity theft can tell you, credit agencies can be difficult.  The State of Mississippi feels your pain and believes that it is time to put the system on trial – starting with Experian.  Last month, Mississippi filed a lawsuit against Experian alleging that it is violating the Fair Credit Reporting Act (FCRA) by failing to maintain proper procedures to verify the accuracy of credit information and correct mistakes.

The suit was initially filed by the Mississippi Attorney General in state court, but it has since been removed to federal court.  The lawsuit accuses Experian of knowingly including flawed and inaccurate data in the credit reports of millions of consumers.  However, as we all know, just running a shoddy business is not illegal.  The legal problems come into play because Experian is allegedly offering no straightforward way for users to correct the flawed or inaccurate data in its reports.  If these allegations are true, that would be a violation of the FCRA.

Experian is the largest credit reporting agency and has annual revenues of nearly $5 billion.  According to the Associated Press, Experian has informed investors that although it tries to comply with the law, ”[w]e might fail to comply with international, federal, regional, provincial, state or other jurisdictional regulations, due to their complexity, frequent changes or inconsistent application and interpretation.”

Federal Court Denies State’s Motion To Seal Following Habeas Counsel’s “Ill-Advised” Facebook Post Citing Kris Kristofferson

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1″  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).

The Flaming Rat Case: A Revisionist Analysis

Out of the thousands of cases I read in law school, I’m embarrassed to say there’s really only one I can remember: “The Flaming Rat Case,” otherwise known as United Novelty Co. v. Daniels, 42 So.2d 395 (Miss. 1949), from first-year Torts. Daniels was an action for wrongful death brought by the personal representative of a machinist who worked at a manufacturing facility. Among other things, the employee was responsible for cleaning machinery, and his preferred cleaning agent seems to have been gasoline. On the day of his death, the hero of our story went into a small, 8×10 foot room to clean a piece of machinery. As it turned out, in the same room, there was a gas-powered heater fed by a pilot light. What happened next was presumably an explosion of Wile E. Coyote proportions.

So why is this called the Flaming Rat Case? We have plaintiff’s counsel to thank for that. The theory at trial seemed to be that the explosion was caused by a rat who lived under the piece of machinery being cleaned. As the machinery was being soaked in gas, so too was the rat. When the rat had finally had enough, it scampered out of its home to vacation in a drier climate, a/k/a by the pilot light. Then the rat caught on fire. Scared out of its ever-loving mind, the rat immediately ran back to its home under the gas-soaked piece of machinery. Then . . . KABOOM.

At trial, the jury found for the plaintiff and held his employer liable for wrongful death. The company appealed, obviously on the grounds of “You’ve got to be kidding me.” In what universe is it reasonably foreseeable that a rat would get soaked by gas, find an open flame, and become a suicide bomber? However, the verdict was upheld by the Mississippi Supreme Court.

In law school, this case is presented as an illustration of the expansive concept of foreseeability. Oh, sure, no one could have foreseen the flaming rat, but it was foreseeable that using gasoline around an open flame could have caused an explosion. Therefore, even if the specific cause of injury wasn’t foreseeable, the general cause was. Or, at least, so the proposition was explained in school.

Well, faithful readers, today I’m going to propose an alternative reading to the Flaming Rat Case. One that doesn’t seem so contrived.

Although I think the Mississippi Supreme Court was amused by the flaming rat theory, I don’t think they bought it. First of all, there’s a proof issue here. Let’s cast a critical eye on the facts. The lawsuit resulted from a gas explosion in an enclosed space. Who was the witness? Anyone who would have seen the flaming rat would almost certainly have perished in the explosion. Notably, while the opinion discusses witness testimony, it does not mention anyone who could substantiate the flaming rat theory. More importantly, the court explicitly stated that the rat facts were inconsequential to its decision.

So why did the court affirm the plaintiff’s verdict? The court seems to have done so by referring to other theories of liability that could be established from the record. Those other theories are what we would now call “negligent training” and “negligent supervision.” The court’s opinion stated in no uncertain terms that the manufacturing company had a duty to warn its employees not to use gas around open flames. There was no evidence that the deceased employee had been warned. The court also held that, even if the employee had been warned, the company had a duty to enforce its policy against using gas around open flames. There was also no evidence of that. Because the breaches of these duties caused the employee’s death, it was appropriate for the company to be held liable. That seems like an open-and-shut case, and much more intellectually satisfying than making employers responsible for acts of God. Or Splinter.

I love the Flaming Rat Case. Always have; always will.

But now, after this revisionist analysis, I kinda feel like the Grinch who stole his own Christmas.