from the rico-slapps dept
Back in the fall of 2017, we wrote about a somewhat crazy situation in which one of President Trump’s favorite law firms, Kasowitz Benson Torres, seemed to be building up a new kind of SLAPP practice: helping various developers file not just bogus lawsuits against environmental groups, but specifically filing RICO SLAPP suits, in which they also claimed that any protests against these developments were violations of RICO (racketeering laws). As you probably already know — and as Ken “Popehat” White has made clear for years — when plaintiffs claim “RICO” in civil suits, it is almost always utterly ridiculous. He’s pointed out, multiple times, that many plaintiffs use “RICO” as a sort of exclamation along the lines of “and this is really bad!” rather than actually matching the (very difficult) standards of an actual RICO claim.
Historically SLAPP suits — or Strategic Lawsuits Against Public Participation — came about as developers went after protesters using bogus defamation lawsuits. So adding RICO claims on top of defamation appeared to be quite an escalation, as it potentially made the defense of these bogus suits that much more expensive and troubling. In October of 2017, a court threw out one of these lawsuits filed by Resolute Forest Products (RFP), which was represented by Kasowitz partner Michael Bowe. But that didn’t stop RFP from almost immediately refiling an amended lawsuit.
And now, the court has mostly dumped that new case, dismissing all of the RICO claims and most of the defamation claims. On the defamation claims, the court clearly recognizes that RFP just stacked up claims in an apparent attempt to overwhelm the defendants:
The Court has reviewed each of the 296 alleged defamatory statements…. In the preceding sections of this order, the Court analyzed in detail the statements that Resolute comes closest to alleging are defamatory. As to the remaining statements, the Court concludes that Resolute fails to allege defamation either because it fails to allege actual malice or because the statements are ones of opinion. Many of Resolute?s remaining allegations consist of critiques that Defendants failed to adequately highlight Resolute?s positive environmental contributions, or disagreements about whether Defendants should have relied on one report instead of another…. These statements are shielded by the First Amendment as not provably false, or statements that ?cannot reasonably be interpreted as stating actual facts.?… The Court again concludes that the use of the word ?destroy? is hyperbolic opinion describing a loss of forest trees, which did occur.
Regarding the civil conspiracy claims, the court is not impressed.
Here, Resolute fails to allege that Defendants and other non-parties agreed to an unlawful plan. Resolute?s allegations of a common unlawful plan depend on the ?operational memorandum,? which stated ?that unless Resolute agreed to unspecified terms dictated by the Enterprise, the Enterprise would aggressively disseminate the intentional misrepresentations that Resolute violated the CBFA and stood alone, as rogue environmental bad actor, among competitors and other CBFA members.?… However, the memorandum is undated, and the FAC does not indicate who wrote or joined it…. It is not clear from the FAC whether the memorandum?s stated goal of a group plan was the memorialization of an existing agreement or merely the aspiration of the memorandum?s author. Finally, Resolute alleges that in early September and December 2012, Stand and other environmental organizations carried out the memorandum?s plan by publishing reports and statements that Resolute violated the CBFA…. However, after the organizations learned that Resolute had not actually violated the CBFA in December 2012, and issued a correction in March 2013, the organizations? actions diverged from those laid out in the memorandum…. The organizations never again stated that Resolute violated the CBFA, and instead launched the ?Resolute: Forest Destroyer? campaign, which criticized Resolute?s environmental record in ways not described by the memorandum…. In short, as described by the FAC, the operational memorandum fails to allege a conspiracy because it does not allege that any of the Defendants agreed to conduct that they knew to be unlawful at the time, i.e., Resolute fails to allege the commission of an underlying tort. See Kidron, 40 Cal. App. 4th at 1582 (?The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.? (emphasis added)). The Court dismisses Resolute?s civil conspiracy claim.
And the related RICO claims fare similarly:
To state a successful claim under RICO, a plaintiff must allege ?(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as ?predicate acts?) (5) causing injury to the plaintiff?s ?business or property.?? Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996) (citations omitted); see also Odom v. Microsoft Corp., 486 F.3d 541, 547 (9th Cir. 2007). To have standing under RICO, a plaintiff must further allege that the RICO violation proximately caused injury to its business or property. Holmes v. Sec. Inv?r Prot. Corp., 503 U.S. 258, 268 (1992); see also Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 463-64 (2007). The RICO statute of limitations is four years. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 183 (1997). Because Resolute fails to plead proximate cause, its RICO claims must be dismissed.
In short, in the words of Popehat, IT’S NOT RICO, DAMMIT.
Thankfully, the court dismisses most of the claims under California’s anti-SLAPP law, meaning that RFP will be on the hook for Greenpeace’s legal fees:
The Court concludes, as in its prior order, that the lawsuit ?arises from an act by the defendant made in connection with a public issue in furtherance of the defendant?s right to free speech.? In re NCAA, 724 F.3d at 1272-73. Resolute?s claims are based on Defendants? speech activities regarding the important public matter of environmental sustainability. ECF No. 210 at 94-95. As to the second step, Resolute has demonstrated that its complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment as to the claims concerning the Montagnes Blanches discussed earlier in this order, but not as to its remaining state law claims. Defendants? anti-SLAPP motions to strike are granted as to the claims dismissed under Rule 12(b)(6)…
While the court does dismiss nearly all of the defamation claims, it does allow one small part of them to survive, which still could be a pain:
Resolute alleges that a 2010 Greenpeace Canada report misleadingly stated that Resolute was logging in the Montagnes Blanches, when it was not, that in May 2013, Brindis sent the 2010 Greenpeace Canada report to Resolute?s customers, and that Greenpeace USA featured the report on its website…. On May 31, 2016, Laurent Lessard, Quebec?s Minister of Forests, Wildlife, and Parks issued a statement explaining that the map that Greenpeace featured in this report to show that Resolute logged in the Montagnes Blanches was misleading…. His statement included a link to an official map of the Montagnes Blanches….
Notwithstanding the Minister?s corrective disclosure, Greenpeace USA and Greenpeace International continue to feature the report on their websites…. Likewise, in a December 16, 2016 letter, Moas wrote to numerous Resolute customers that Resolute was operating in the Montagnes Blanches.
Here the court says that there’s enough in the pleadings for a real claim:
The Court concludes that Resolute adequately pleads actual malice as to the Clearcutting Free Speech report. First, the statement is materially false in alleging that Resolute was logging in the Montagnes Blanches when it was not…. Second, the statement is provably false and likely to be taken by readers as a statement of fact, especially given its categorization as a report by an expert body and its lack of cautionary terms… Finally, the FAC plausibly alleges that Moas was at least reckless given the Quebec Minister of Forests? public statement that Greenpeace?s maps were inaccurate and the filing of the complaint in this case stating the same…. The Court reaches this conclusion even though the Clearcutting Free Speech report identified the sources on which it relied, because those sources were incorrect as to the Montagnes Blanches map.
That last bit may eventually kill these remaining claims. Accurately disclosing the sources on which you relied in making claims is frequently seen as a defense against defamation claims. Still, the case will move forward on those few claims — but having the majority of the claims (and especially the RICO claims) thrown out (with California’s anti-SLAPP law) is clearly a victory for Greenpeace (and for free speech).