Swiss Cheese Chronicles: Nailing Down a Sequence of Events

With all of the responses in to the Mississippi Supreme Court, it’s time to start sorting out what exactly happened.  The responses are lacking, but we endeavor to distill truth and fact from what has been presented to the Court.  They have a tremendous undertaking before them.

We first wish to understand the sequence of events at the meeting.  There are two different versions of this.  Judge Hilburn’s story follows the pattern A – B – C while almost everyone else follows the pattern A – C – B.  The below statements are verbatim excerpts from each response; we have only removed sentences or phrases that were not pertinent to the sequence of events.

Judge Hilburn:

  • A – I immediately told them there would be no discussion of any state court matters.
  • B – I inquired as to the status of the federal court litigation;
  • C – I told those present they would not need to appear at the Jackson County Courthouse the next day, that I had prepared an email temporarily staying the state court litigation and canceling the hearing scheduled at 9:00 the next day.

Sessoms & Williams:

  • A – Judge Hilburn subsequently arrived, and again it was mentioned that there would be no discussion about the Chancery Court cases.
  • B – Plaintiffs’ Counsel, Jim Reeves, who represents clients in the Jones litigation, but not in the Almond litigation […] discussed the Jones Federal Court litigation.
  • C -Judge Hilburn announced he was staying all proceedings pending the Federal Court litigation. He also said that he was cancelling the hearing set for 9:00 AM the next day.

Incredibly, Sessoms & Williams response differs from their earlier response to the Court on behalf of SRHS.  In that version, Judge Hilburn announced the stay at the beginning of the meeting and not at the end.  It appears Sessoms & Williams sequence of events changed after having the benefit of  Judge Hilburn’s statement. See below.

SRHS response signed by Sessoms, 3 days before Judge Hilburn’s response:

  • At the start of the meeting, Judge Hilburn mentioned that he was entering a stay of all proceedings in deference to the upcoming Federal Court hearing.

Scott Taylor’s blog post:

  • A – Immediately upon arriving, I was admonished by Singletary that no pending motions were to be discussed and that no matter relating to any cases for attorneys not present were to be discussed. Singletary advised us at the conference that Judge Hillburn had an announcement for us and that he wanted an update on the class action proceedings pending in federal court.
  • B – We provided that update to Judge Hillburn when he arrived.
  • C – His announcement was that, whether we liked it or not, he would be entering an order staying the state court proceedings while the class action played out.

Scott Taylor’s response to Miss. Supreme Court:

  • A – When Judge Hilburn arrived, he said the same thing.
  • C – Judge Hilburn then immediately announced that, whether we liked it or not, he intended to stay the proceedings in his court in deference to the class action pending in federal court.
  • B -Judge Hilburn then inquired of Jim Reeves, class counsel in the class action case, where the class action stood, what was expected in the future, and when. Jim told him.

Special Master Britt Singletary:

  • A – Judge Hilburn reiterated that instruction when he arrived.
  • C – Only when Judge Hilburn arrived did we learn he had decided to temporarily stay the state matters until Judge Guirola held his hearing.  He made the announcement as soon as he sat down.
  • B – We then heard an update from Jim Reeves on the upcoming preliminary class approval hearing […]

Reeves & Mestayer:

  • A – As soon as he arrived, Judge Hilburn advised everyone that he would not discuss any state court matters, that he was aware of the recent federal filing,
  • C – and that he intended to temporarily stay all state court proceedings in deference to the federal court.
  • B – Jim Reeves then answered a few questions from Judge Hilburn and

Billy Guice’s response to Miss. Supreme Court:

  • A – Special Judge Hilburn said that no discussion of pending motions would take place and
  • C – that he had decided to stay all matters in the Chancery Court to give the Federal Settlement a chance and to prevent costs to all.
  • B – Reeves then gave a short discussion of the Federal Settlement.
  • A – Special Judge Hilburn repeated that there would be no discussion of pending motions and that there would be a stay imposed that day.

Billy Guice’s recounting to JCBOS:

  • A – He came in […] and indicated “I do not want to do anything improper. We are not going to discuss any pending motions.
  • C – I am here as a courtesy to tell you I am going to stay all matters before me.” He essentially said that a second time.
  • E – After he [Judge Hilburn] left they discussed what was to happen tomorrow in the first phase of the fairness procedures in federal court.

Guice’s version to his clients at the JCBOS is at odds with all other accounts.  He told everyone that Judge Hilburn didn’t even stick around to discuss the federal court hearings.

Special Fiduciary Stephen B. Simpson:

  • Offers no substantive sequence of events
All Accounts are at Odds with Hilburn’s

By Judge Hilburn’s own words and sequence of events, he was going to stay the cases “once I determined that the federal parallel litigation was still on track.”   Messrs. Sessoms and Williams confirm the Judge’s sequence of events, but not in their original filing. Mr. Taylor’s sequence on his blog post did as well.  Singletary, Guice, Reeves, Mestayer, and Taylor offer a different sequence to the Supreme Court.  Everyone has proffered at least one version of events that are at odds with Judge Hilburn’s.   If we believe Judge Hilburn, how could he have possibly stated his clear intent to stay the cases at the beginning of the meeting, when he first needed to hear from Jim Reeves to make a determination?

Inconsistencies in Timing of Drafting of the “Order”

There are inconsistencies between the version Judge Hilburn proffers and that of Billy Guice.

Judge Hilburn in original response:  I told those present they would not need to appear at the Jackson County Courthouse the next day, that I had prepared an email temporarily staying the state court litigation and canceling the hearing scheduled at 9:00 the next day.

Judge Hilburn in second response: That evening [Jan. 11]  I drafted an email ordering a temporary stay of the state court cases which I was going to transmit to all parties once I determined that the federal parallel litigation was still on track.

Billy Guice:  Special Master Singletary then offered Special Judge Hilburn a separate office to formulate and send an email. It is not known whether Special Judge Hilburn accepted Special Master Singletary’s offer, but he did leave those in attendance immediately without any additional conversation.

Billy Guice to JCBOS: The Special Master offered him to use another separate office to send an email to everyone expressing that.

If Judge Hilburn announced that he “had prepared an email,” then why would it be necessary for “Special Master Singletary [to offer] Special Judge Hilburn a separate office to formulate and send an email”?  The inconsistency is furthered by Judge Hilburn’s own words in the email message. He states, “The temporary stay, which is now in effect, will require that the hearings, set for tomorrow ( January 13th), be canceled.

It is an oddity that someone drafting an email pertaining to events two days away would use the word “tomorrow” in describing the date.  Hilburn’s use of “which is now in effect” would not be associated with someone writing about a tentative decision where the ultimate outcome would not be known until the following day.

Bottom Line

Even answering a question as simple as “What was the order of events?” has been proven to be highly complex. The only thing we can be sure of is that the Supreme Court will likely have many more questions.

 

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