Extortion and Super-Secret Prior Restraints

An Oklahoma case involving an employee's allegations of food plant contamination-litigated under seal.

I just learned the details of this story—it happened last spring, but it was sealed until several days ago. I'd love to hear what you folks think about it.

The alleged extortion: Our tale begins April 24, 2017, with some texts that one Armando Acosta sent to his manager at Packers Sanitation Services, Inc. (apparently "the nation's largest cleaning contractor to the food industry"). Acosta worked for PSSI as a cleaner, and was assigned to a food processing plant owned by AdvancePierre Foods. AdvancePierre's plants are predominantly in Garfield County, Oklahoma, and AdvancePierre is apparently "one of the largest employers in the area."

Acosta's texts "claim[ed] that swabs he took from PSSI's customer's equipment tested positive for Listeria, as well as other bacteria." In copies of the texts attached to PSSI's court filings, Acosta said that he was going to take this information that day and the next to various businesses (presumably AdvancePierre's customers), as well as to the U.S. Department of Agriculture. And, in those texts, Acosta apparently sought $650,000 from PSSI as payment for his silence. (For the specifics about Acosta and what he allegedly did, I will generally rely on PSSI's factual claims in their court papers; I could not find Acosta myself and Acosta didn't file any papers.)

The big business deal: The next day, April 25, three things happened. First, Tyson Foods—the nation's leading meat processor—announced that it was buying AdvancePierre for about $3 billion.

The injunction: Second, PSSI petitioned the Garfield County trial court for a temporary restraining order that would temporarily bar Acosta from "[d]isclosing or using, directly or indirectly, any of the illegally obtained confidential and/or propriety information obtained from PSSI and/or AdvancePierre to any person and/or entity." Judge Jason Seigars granted the request that morning, ordering that Acosta be:

restrained [for two days] from interfering, in any respect, [with] PSSI's business relationships with AdvancePierre, and … from contacting any governmental agency or media outlet regarding his allegations ….

Acosta didn't appear at the hearing, and indeed was only served with the petition on April 27 (though it may well be that the difficulty serving him was his own fault).

The legal theory behind the TRO was a bit complicated. The case was listed on the docket as involving libel, which is why I wrote about it in June as a libel case. Part of PSSI's argument was that Acosta "cannot be harmed if he is ordered to stop making false statements regarding PSSI and AdvancePierre." Another motion, filed the same day, stated that "Plaintiff and its customer avers, based on Plaintiff's customer's due diligence, as explained more fully in the Verified Petition, that the information Defendant seeks to disseminate is false." And PSSI said that, "AdvancePierre has mechanisms in place to test for the presence of bacteria and other contaminants—none of which have resulted in positive test results in the area where Employee illegally obtained his 'findings'"; in a further filing this year it added that "AdvancePierre likewise complied with its regular testing obligations after Defendant's threats and determined that no contamination existed within the facility."

But the main theory in the petition was not focused on falsity (unsurprising, since PSSI didn't have access to Acosta's claimed evidence). Indeed, according to PSSI's motion for the temporary restraining order,

As of the date of filing this Motion, PSSI is not aware of any basis in fact regarding Defendant's allegations regarding contamination of any equipment in AdvancePierre's Enid plant. However, in order to best protect its business interests and proprietary information, PSSI is assuming, for purposes of this Motion and its Petition only, Defendant's allegations concerning the contaminated equipment are true.

Rather, the focus of PSSI's claims was that Acosta's conduct constituted "breach of confidentiality" and "tortious interference with business contracts":

1. Acosta had "illegally obtained confidential and/or proprietary information belonging to PSSI and/or its customers," "in violation of his job description" (which did not "include the taking of and/or the testing of samples from the customers' equipment and/or plants") "and [of] PSSI's Employee Handbook" (which required employees to keep "client-related information" confidential),
2. Acosta's goal was extortion, and
3. if Acosta were to release this information, "whether true or false," the release "could lead to the termination of vital business contracts with PSSI, irreparable defamatory harm, exposure to unwarranted government investigation, and the release of confidential and proprietary business information."

This was the basis for the judge's order forbidding Acosta from conveying the information to the media or to the government.

The sealing of the case: Finally, still on April 25, PSSI also moved to seal the case, arguing that

sealing of the requested filings is necessary in the interest of justice where dissemination of the information stolen by Defendant would harm the business practices of Plaintiff and its customer as well as cause unwarranted fear and concern amongst the general public.

The judge granted the motion the same day, providing that the petition and the motion for the TRO were to be sealed.

Two days later: The initial TRO was set to expire on April 27, so on April 27 the court issued a longer-term temporary injunction; Acosta did not appear at the hearing. At the hearing, PSSI also asked that all the documents in the case be sealed, and they were:

The Court … finds that under the circumstances presented it is necessary in the interests of justice to keep the materials, filed in this case, from public record at this time, and that all documents should be filed under seal and the Court Clerk is thereby directed to seal all documents.

A month after that, on May 30, the court granted PSSI's motion for default judgment (because Acosta had not filed any papers contesting PSSI's case), and the injunction was made permanent. Tyson's acquisition of AdvancePierre was completed on June 7.

* * *

This seems to me an interesting test case for many recurring questions about the First Amendment and injunctions:

• Should courts be able to order people not to reveal certain information because they acquired it unlawfully, because revealing it would be a breach of a duty of confidentiality, or because it is allegedly false?
• Should it matter that the person's motives for threatening to reveal the information seem to be extortionate—and, if so, should the court try to enjoin just the extortion, or also enjoin the revelation of the information, period?
• Should the victims of this apparent attempted extortion be only able to proceed by calling on criminal prosecutors, or should courts be able to supplement this criminal process with fast-moving emergency injunctions? (Acosta was never prosecuted; PSSI's counsel tells me that this is because law enforcement couldn't locate him, and he wasn't heard of again after being served on April 27.)
• Was the injunction correct in barring Acosta "from contacting any governmental agency or media outlet regarding his allegations"? Or should any duty of confidentiality in such a case be rejected as against public policy, when it bars people from alerting the U.S. Department of Agriculture (or similar agencies) to possible health risks—however ill-intentioned the people were when they gathered the information, and however spurious those allegations may (or may not) prove to be when the government does investigate them?

These are all interesting questions, I think, and ones much worth debating. It's certainly possible (though I think not obvious) that the right answer to those questions is that PSSI should have prevailed under all of them.

But the problem is that it was impossible for anyone to debate them, because all the documents in the case (though, thankfully, not the docket) were sealed. I think this sealing violated the common-law and First Amendment rights of access to court records; those rights aren't absolute, but they are quite strong, especially when sealing of entire documents (including court orders) is involved. (See this post about a different case for more on that body of law.) Moreover, as I argued in this post from two months ago, an Oklahoma statute expressly requires that any sealing order itself be public, and expressly explains why the case was sealed; in this instance, this statute wasn't followed. (The statute was enacted in 2014, and might thus not have been on the judge's radar.)

Fortunately, after I moved in June of this year to unseal the sealing orders—a first step towards unsealing the rest of the case—the judge promptly did so (without objection by PSSI). And as I was preparing a motion to unseal the rest of the case, the judge, to his credit, himself issued an order to show cause why the case shouldn't be unsealed. PSSI responded that it didn't object to the unsealing at this point, "because Defendant's allegations regarding the presence of bacteria on equipment at the Enid Plant have been definitively proven to be false and the emergent concerns associated with the disclosure of the allegations have since subsided." The case was indeed unsealed several days ago.

So, to the questions I ask above, I should also add:

• Should such disputes be litigated under seal—on the theory that this is the only way to effectively prevent the harm caused by defendant's apparently tortious conduct—or should they be litigated in open court, on the theory that it is important for the public to be able to "monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system"?
• Indeed, might such monitoring be especially important precisely when the courts are issuing orders restricting people from speaking—including through allegations (whether or not the courts view them as well-founded) of serious risks to public health?