Straight Out of Rosedale: Mississippi’s Sudden Interest in Limiting State Lawsuits While Google Sues Attorney General Jim Hood

You can’t make this stuff up.  It reads like a subplot of a John Grisham novel with that vague warning that it could swing back across the stage as a plot twist in the third act to smash into the ending with a vengeance, carrying streaming guidons reading  “Here am I, the one true ending, send me.”   A single bugle sputtering a few bars of Garry Owen in the darkest gloom of dawn at Vicksburg.  The General, perhaps.

In a strange twist of fate worthy of Robert Johnson at the crossroads, a number of events transpired in recent weeks involving Mississippi State Attorney General Jim Hood who is being sued by Google for having the audacity to investigate a variety of potentially unsavory business practices having to do with sex, drugs and yes, rock and roll.

The timeline on this is that Hood served Google with a subpoena last October 21 asking for documents relating to Google’s business practices–what Google itself does–mostly involving how the company handles human trafficking, advertiser fraud and why the Google stockholder settlement over the $500,000,000 forfeiture Google paid the United States has a section that addresses how Google provides golden parachute terminations for employees convicted of felonies under state and federal law.  And also a few questions regarding the hundreds of millions of DMCA notices that Google receives for copyright infringement.

Then there was the Sony hack, and thanks to North Korea some stolen documents circulated on the Internet including some confidential emails from the MPAA.  You have to live under a rock not to know the rest of those facts.  And–shocker–people in the business of producing movies don’t like Google much.  According to Google, somehow the stolen documents show that MPAA is involved with helping the state develop a case against Google.

Google then sues Hood in federal court in Mississippi and tries to somehow transform Hood’s investigation from a case about Google’s business practices and compliance (with Google’s non-prosecution agreement with the Criminal Division of the Department of Justice) into a case about infringing materials on Google’s various platforms–all essentially based on the documents stolen courtesy of North Korea.  And Google wants you to believe that somehow there’s a SOPA angle about all this–a stretch that didn’t impress many people not on the Google payroll.  As Congressman Issa said, if there’s a scandal here at all, it’s that years after SOPA, there’s still the same problem that SOPA was trying to solve however inartfully.

Google is trying to get an injunction to stop Hood’s investigation.  Hood’s brought no case as yet and has only asked Google to respond to his subpoena.  Google probably has dozens of open subpoenas around the world, so this is nothing new.  Google could very easily respond to the subpoena and reject the lines of questioning its lawyers think are inappropriate or wrong–essentially the same work that went into asking for an injunction.  But they wanted a court–a federal judge–to order a state law enforcement officer to stop the investigation into violations of state law.

Of course, the federal judge denied Google’s request but asked the parties to brief their positions, which they did.  And here’s where it gets weird.

First, Google filed its response to Hood and a handful of the trade associations and lobby shops the company funds filed “friend of the court” responses as well.  This on February 2.  Vox Indie has a great post describing the various funding relationships between Google and the “amici”.  (UPDATE:  Mike Godwin wrote an op-ed in the Clarion-Ledger–Godwin not only works of the R Street Institute (funded by Google) but was formerly at Public Knowledge (funded by Google), the Center for Democracy and Technology (funded by Google) and the Electronic Frontier Foundation (funded by Google).  He also attended Lamar High School in Houston, go Redskins!)

On January 19, a Mississippi state legislator introduced Mississippi House Bill 1201–legislation that would limit the Mississippi attorney general’s ability to sue on behalf of the state for any reason.  Such as a potential lawsuit against or criminal prosecution of Google.

On February 3, Hood was in Washington, DC to announce a settlement of claims against Standard & Poors for doing something that sounded a lot like cooking the credit ratings of companies that were involved in the 2008 mortgage scandals.  Hood was a leader in the several states in the suit against S&P.

According to the Associated Press:

Attorney General Jim Hood says in a news release that Mississippi sued S&P in 2011, joining with Connecticut, the first State to sue in 2010. By 2013, the Justice Department and 17 other states filed similar lawsuits against S&P.

Standard & Poor’s is paying about $1.38 billion in the settlement announced Tuesday over ratings issued from 2004 through 2007.

Hood says the credit rating agencies were just as culpable as the investment banks in causing the financial crisis. Hood says the credit rating agencies held themselves out to be objective and independent.

Oh, and how much was the settlement again?  That’s $1.38 billion with a B.  But let’s limit the state AG’s ability to go after bad guys.

What happened with Mississippi House Bill 1201?  It passed out of committee:

A House judiciary committee passed a bill today that would require the state attorney general to gain approval from an oversight committee of the governor, lieutenant governor and secretary of state to file any lawsuit on behalf of the state for more than $250,000.

State Rep. Ed Blackmon Jr., a member of the House Judiciary A Committee, called the measure partisan politics. He voted against it.

House Bill 1201 was filed by the chairman of the committee, state Rep. Mark Baker, R-Brandon, who has been discussed as a potential candidate for attorney general this year.  [Mr. Baker was also the Republican Leader of the Mississippi House Republican Conference from 2008 to 2012 according to his official biography.]

State Attorney General Jim Hood, the lone statewide Democratic official, has been criticized by some Republicans for hiring outside attorneys to represent the state in litigation, but at the same time, through litigation, Hood’s office is responsible for bringing hundreds of million dollars into the state treasury.

And then on February 5, Bill 1201 failed to pass the Mississippi House:

Mississippi House members are rejecting new restrictions against Attorney General Jim Hood’s ability to file lawsuits or hire outside lawyers.

The House voted 66-49 Wednesday to reject a House Bill 1201, which would require the governor, lieutenant governor and secretary of state to approve the attorney general’s filing of any lawsuit in which the state could win more than $250,000. House Judiciary A Committee Chairman Mark Baker, R-Brandon, could bring the bill back up for more debate….Baker said Hood’s unfettered ability to bring lawsuits is improperly setting state policy, negatively affecting Mississippi, and robbing those who are sued.

Hood and supporters say House Bill 1201 would put unconstitutional restrictions on the attorney general’s power….

“This may be the most rancid, politically motivated bill I’ve seen before this Legislature,” said Rep. Steve Holland, D-Plantersville.  

Lawsuits by attorneys general have been a long-festering issue in Mississippi politics, running back to when Hood’s predecessor, Democratic Attorney General Mike Moore, sued the tobacco industry in the mid-1990s, arousing the ire of Republican Gov. Kirk Fordice even as Moore won millions for the state. [$4.1 billion, actually.]

Republican Gov. Haley Barbour — who was a tobacco lobbyist in Washington during Mississippi’s lawsuit against the industry — used the tobacco money to help prop up the state budget during the recession. The payments from the tobacco lawsuit settlement are still being spent under the current Republican governor, Phil Bryant.

So all in all, a pretty good week for Jim Hood.  Bizarre, but good in the end.  This is particularly true when you consider that there are potentially dozens of additional state attorneys general who are also investigating Google and also that Mike Moore is evidently advising Hood.  This would make sense if, like the tobacco litigation and the S&P litigation, Mississippi is joining with other states to pursue Google. Moore was the first state attorney general to sue the tobacco companies, resulting in a $236 billion settlement, of which $4.1 billion went to Mississippi.  (Google is no stranger to multistate litigation–it settled a privacy case with 37 states in 2013.)  Oh, and Mike Moore got a part in a Hollywood movie.

Don’t watch The Insider on a dark and stormy night.  Let’s just say it’s not The Internship.

As Andrew Orlowski wrote in The Register:

Google’s success in “assassinating” a democratically-elected legal opponent last week raises troubling questions about corporate power and accountability. The feisty attorney for the USA’s poorest state is now trying to make peace, after being on the receiving end of a highly unusual lawsuit from Google.

Even if you will have no truck with the Hollywood lobbying machine, you should know the facts. A global corporation which is expected to bank $60bn in revenue this year and which is worth $382bn, has silenced an elected prosecutor.

Google’s income is 30 times that of the General Fund in Mississippi; its market valuation is four times the entire state’s GDP. What did Jim Hood do to make himself Google’s enemy?

Based on Hood’s response to Google’s attempt to stop his investigation, I’m not so sure that he’s giving into “rancid” tactics.  But ask yourself this:  If this were Big Tobacco going after former Mississippi Attorney General Mike Moore, how would you feel about Google’s tactic?

Or Enron?

Or Drexel Burnham Lambert?

So why should Google be special?

UPDATE:  Judge Wingate–evidently Hood’s long-time political enemy–ruled against Hood.  The case is currently on appeal to the U.S. 5th Circuit Court of Appeals.  This should not prevent Hood from pursuing state law claims against Google or anyone else.