Entergy Arkansas sues Democrat-Gazette, Arkansas Times to block reporting on Google data center deal

Federal judge expected to rule Wednesday on request that press freedom advocates call a prior restraint

LITTLE ROCK — Entergy Arkansas has sued the state’s largest newspaper, an alternative news outlet and a private citizen in federal court, asking a judge to stop them from publishing details of the utility’s agreements with Google over a $4 billion West Memphis data center — and to take down a story already published.

The lawsuit, filed Tuesday in the U.S. District Court for the Eastern District of Arkansas, names the Arkansas Democrat-Gazette, its business reporter Sydney Sasser, Arkansas Times LP, Times managing editor Byron Tate, and Jessica Kivell, a central Arkansas resident who obtained the records through a Freedom of Information Act request to the Arkansas Public Service Commission.

U.S. District Judge Lee Rudofsky heard nearly four hours of testimony and argument Tuesday evening on Entergy’s emergency motion for a temporary restraining order, with roughly half the hearing conducted behind closed doors while the judge reviewed the disputed documents. Rudofsky did not rule Tuesday night but said he expected to issue a decision by midday Wednesday.

The judge signaled skepticism of the utility’s request, telling attorneys, “It would take a lot to get me to do a prior restraint.”

A mistaken release

According to Entergy’s 18-page verified complaint, reviewed by Arkansas Breaking News, the dispute centers on a services agreement between Entergy Arkansas and Altitude Capital LLC — the Google subsidiary developing the West Memphis data center. Entergy filed the agreement with the Public Service Commission under a “highly sensitive protected information” designation, and the commission entered a protective order shielding it from public disclosure.

The complaint alleges the PSC “mistakenly disclosed” portions of that protected material in response to Kivell’s FOIA request — in violation of the commission’s own protective order. Kivell then shared the records with Sasser, the complaint alleges, and the Democrat-Gazette published a story Aug. 31 based on them.

That story reported Google will pay Entergy Arkansas $526 million toward Cypress Solar, the $1.6 billion, 600-megawatt solar and 350-megawatt battery facility planned near Pine Bluff to serve the data center — meaning Google’s contribution covers roughly one-third of the project’s cost. The newspaper also reported the contract includes a termination fee of roughly $2 billion, guaranteed by Google parent Alphabet Inc., if Google breaches the deal in its first 13 years.

Entergy’s complaint asserts claims under the federal Defend Trade Secrets Act and the Arkansas Uniform Trade Secrets Act. Its legal theory hinges on the defendants’ knowledge: because the Democrat-Gazette had previously sued the PSC for the same records in Pulaski County Circuit Court — a case dismissed July 28 for lack of jurisdiction — the utility argues the newspaper knew the material was claimed as trade secrets and knew the commission’s release was an accident.

The utility is asking the court to bar all five defendants from further disclosure, order them to destroy all copies, identify anyone else who received the records, and remove any already-published disclosures from their websites. Entergy is not currently seeking damages but reserved the right to do so.

First Amendment stakes

Attorneys for the newspaper argued Entergy has not established that the records qualify as trade secrets, and that the Democrat-Gazette had no way of knowing precisely which information the company considered proprietary.

The Arkansas Times, meanwhile, says it was sued over documents it has never even seen.

“The Arkansas Times is not in possession of the documents, nor have we reviewed them,” the publication wrote in an article Tuesday. “Entergy certainly thinks we have them, though. They’ve sent multiple emails to us today, threatening legal action and warning us to ‘refrain from further disclosure of EAL’s [Entergy Arkansas LLC’s] trade secrets and that you return the mistakenly produced material to the PSC.'”

It remains unclear why the Times and Tate were named as defendants. Entergy’s complaint alleges only “on information and belief” that Kivell provided the records to Tate and that the Times intended to publish a story based on them.

Kivell, who testified during the closed portion of Tuesday’s hearing, appeared without an attorney and left the courthouse in tears.

Courts have historically treated prior restraints — government orders barring publication in advance — as among the most serious First Amendment violations, and free speech advocates told the Arkansas Advocate that granting Entergy’s request would run afoul of the Constitution. Rudofsky acknowledged the tension Tuesday, telling Entergy’s attorneys their case appeared strong but that the First Amendment gave him significant pause.

Three of the nine entries on the case docket were filed under seal Tuesday, including Entergy’s TRO motion itself. The case is Entergy Arkansas, LLC v. Arkansas Democrat-Gazette, Inc., et al., No. 4:26-cv-00899-LPR.

The Public Service Commission approved the special rate contract between Entergy and Google in December. The deal — and how much of the data center’s infrastructure costs will fall to Google versus Entergy’s roughly 730,000 Arkansas ratepayers — has been the subject of sustained public records fights since June, when Sasser first requested the contract and the commission withheld portions citing trade secret exemptions.

This is a developing story. Arkansas Breaking News will update when Judge Rudofsky rules.