from the the-infamous-rico-slapp dept
We talk quite a bit about the problem of so-called SLAPP lawsuits around here. SLAPP standing for “Strategic Lawsuit Against Public Participation.” It’s a terrible acronym, but what it really means is generally the rich and powerful filing bogus lawsuits against the less powerful for the purpose of harassing and silencing them. That is, even if the plaintiffs recognize that they will lose, it’s worth it to them to file the lawsuit anyway, because the process itself can be so destructive to the defendants. This is why anti-SLAPP laws are so powerful, allowing defendants to both get rid of such lawsuits quickly and to get back legal fees, thus minimizing at least some of the damage of SLAPP suits. Now, there are some lawyers who seem to be specializing in filing SLAPP-style lawsuits. One law firm that appears to be building up such a reputation happens to be President Donald Trump’s personal law firm, Kasowitz Benson Torres. We’ve discussed how its founding and managing partner, Marc Kasowitz, had threatened to sue the NY Times over its reporting on women claiming Trump had touched them inappropriately — a threat he failed to follow through on within the statute of limitations in New York.
However, others at Kasowitz’s firm appear to be targeting the environmental movement with SLAPP suits, starting with Greenpeace. And, they’ve added a funky little twist to the traditional SLAPP suit — the RICO SLAPP. Back in May of 2016, a company named Resolute Forest Products, represented by Kasowitz partner Michael Bowe, filed a massive (124 page) lawsuit against Greenpeace and a few others, claiming that Greenpeace is a fraud. Literally. Here’s how the lawsuit opens:
?Greenpeace? is a global fraud. For years, this international network of
environmental groups collectively calling themselves ?Greenpeace? has fraudulently induced
people throughout the United States and the world to donate millions of dollars based on
materially false and misleading claims about its purported environmental purpose and its
?campaigns? against targeted companies. Maximizing donations, not saving the environment, is
Greenpeace?s true objective. Consequently, its campaigns are consistently based on sensational
misinformation untethered to facts or science, but crafted instead to induce strong emotions and,
thereby, donations. Moreover, virtually all of Greenpeace?s fraudulently induced donations are
used to perpetuate the corrupted entity itself and the salaries of its leaders and employees.
It turns out that Resolute Forest Products (a Canadian logging company) is kind of upset that Greenpeace has been campaigning against the company, arguing that it’s a “Forest Destroyer.” The two organizations go back a ways — and Greenpeace in the past did retract and apologize an erroneous statement about Resolute a few years back. But the lawsuit goes on at great length to claim that Greenpeace’s actions are a form of racketeering that has cost Resolute $100 million in reputational value — opening up Greenpeace to the potential of a $300 million penalty.
And, yes, here’s where I’ll point you to Ken “Popehat” White’s IT’S NOT RICO, DAMMIT post, where he explains how almost no case is really a RICO (racketeering) case. And it applies to this one as well. While the case was originally filed in Georgia (which has a decent anti-SLAPP law, but one facing some challenges recently), it was later transferred to California, which has a very strong and well-established anti-SLAPP law. And, thus, last week the case was thrown out on anti-SLAPP grounds.
Whether or not you like Greenpeace or its methods is besides the point here. The issue is whether or not a company that is being targeted for protests can file a massive RICO lawsuit against an organization for its protests. And here, the judge said that’s not how it works. The judge notes that the basic claims — on which most of the rest of the claims rely — of defamation don’t pass the sniff test, as there’s no actual malice shown (which is required for defamation of a public figure, which the court says Resolute is). It also points out that nowhere did Resolute show that any of the named defendants made “knowingly false statements.” That… makes a defamation claim difficult.
The court also isn’t impressed with Resolute trying to turn clear statements of opinion into pretend “facts.”
In its quest to describe Greenpeace?s statements as matters of fact instead of opinion, Resolute often takes an overly literal approach to obviously overemphatic speech. For instance, Resolute refers to a Greenpeace campaign that describes Resolute as a Canadian Boreal ?Forest Destroyer.? … Resolute?s claim depends on construing the word ?destroy? to mean ?annihilate? or ?eliminate completely.? In this vein, Resolute?s expert witness Peter Reich states, ?Resolute has not destroyed, and is not destroying, the boreal forest. Because almost all harvested stands grow back to boreal forest, Defendants? claims about Resolute?s forest “destruction? cannot be true.?…
As any reader of Greenpeace’s statements will know, these are not the only permissible constructions. The word ?destroy? is a perennial instrument of hyperbole. See, e.g., Edward Barsamian, ?Gigi Hadid Takes on the New Look of Destroyed Denim,? Vogue (Feb. 3, 2015) (on-line ed.) (https://www.vogue.com/article/gigi-hadid-style-destroyed-denim). The Vogue writer here does not intend to convey that Ms. Barsamian’s jeans have been completely annihilated, but merely that they are ?worn with deliberate tears at the knee? or ?riddled with curious new holes.? Similarly, when the entertainment writer Shaunee Flowers states that ?Kanye West destroys Wiz Khalifa on Twitter and it’s epic,? she is not suggesting that Mr. West has actually eliminated Mr. Khalifa, but only that he has made disparaging comments about him on social media….
Yes. A judge in a RICO lawsuit about environmental protests is discussing Kanye West twitter battles. We live in such amazing times.
Resolute’s attempts to include expert commentary on why Greenpeace is wrong, just leads the court to note that these are the kinds of things that people can disagree on, which makes it even more ripe for First Amendment protections:
The submission by Resolute of two expert declarations makes more manifest, not less, the degree to which the challenged statements are protected by the First Amendment. These declarations illustrate the extent to which the challenged statements (a) concern matters of public importance and (b) are subject to professional debate. For example, declarant Frederick Cubbage undertakes a review of the FSC?s suspensions of RFP?s certifications and concludes: ?Resolute?s 2013 FSC audits indicate possible bias. Audits of similar forests in similar situations should have similar outcomes. That did not appear to be the case for Resolute. An applicant in full compliance with relevant laws should be certified under any standard.? … Greenpeace?s expert, Keith Moore, disagrees with this analysis, noting that because ?[t]he FSC certification system establishes a higher standard and a broader suite of requirements,? it is possible to comply with the relevant law and still be denied FSC certification. … Accordingly, he concludes, ?[i]t is also incorrect to state that a company that meets regulatory requirements is equivalent to a company meeting all FSC certification requirements.? .. After all, as Dr. Cubbage notes, ?forest certification, generally, refers to a non-state market-based policy approach to achieving sustainable forest practices and development,? … so by definition it will encompass more than ?relevant laws.? The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind. As the Seventh Circuit has said, ?scientific controversies must be settled by the methods of science rather than by the methods of litigation.? Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994). For that reason, ?[c]ourts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.?
The court is also not at all impressed by the RICO claims. Remember the Popehat admonition about just how difficult it is to ever properly prove RICO in court? Resolute fails. Miserably.
Resolute fails to meet these heightened pleading requirements. While Resolute?s complaint lists reports authored by Greenpeace, and includes dates of publication in many cases, in many cases it does not identify the author of the reports, and it never identifies the ?misconduct? or ?specific content? that constitutes fraud in the reports.13 Much of Resolute?s pleading is even less specific. For example, Resolute claims that the Defendant ?processed millions of dollars in fraudulently induced donations,? without describing a single donor, donation date or amount, nor how the donation was fraudulently induced… As such, the defendants are not on ?notice of the particular misconduct which is alleged to constitute the fraud.? … These general allegations fall far short of Rule 9(b)?s requirements, and Resolute?s RICO claims are therefore dismissed.
There’s also the claim of extortion as a part of the RICO claim. Again… nope:
Resolute fails to allege predicate acts of extortion under the Hobbs Act. There is no Hobbs Act claim because the Defendants have not obtained ?property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.? 18 U.S.C. § 1951(b)(2). To show extortion, Resolute must allege that that Greenpeace demanded property from Resolute itself. Sekhar v. United States, 133 S.Ct. 2720, 2725 (2013); Scheidler v. Nat?l Org. for Women, Inc., 537 U.S. 393, 404 (2003). In Scheidler, the Court held that the National Organization for Women (?NOW?) had not alleged extortion against activists who sought to shut down abortion clinics because although those activists sought to harm the clinics and NOW, they did not seek to obtain any property from such harm. 537 U.S. at 405 (?Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received something of value from respondents that they could exercise, transfer, or sell.?). Likewise here, even if Greenpeace sought to harm Resolute through Resolute?s customers, it did not seek to obtain the business assets it sought to deprive Resolute of. Any alleged property transfer induced by fraud, coercion, or threats, moved between Greenpeace and its donors, or between Resolute and its customers. There was no alleged property transfer between Greenpeace and Resolute.
From there, the court moves on to the anti-SLAPP motion to strike. The analysis is short and straightforward. Greenpeace was clearly engaged in protected speech on a matter of public interest, and Resolute failed to show a probability of success as a matter of law. Thus, Greenpeace wins the anti-SLAPP motion as well (on state law claims). And, thus, Resolute will now have to pay Greenpeace’s legal fees. Of course, the court did allow Resolute the ability to file an amended complaint, and if that fails (as seems likely) Resolute may still appeal. However, I’d be quite surprised if the 9th Circuit ruled differently. This appears to be a fairly straightforward SLAPP case, just with a RICO twist.
Of course, just a couple months earlier, while this case was still pending, a company called Energy Transfer Partners — which might be more well known as an organization behind the controversial Dakota Access Pipeline — filed a strikingly similar lawsuit against Greenpeace (and others, including Earth First). This one begins:
This case involves a network of putative not-for-profits and rogue eco-terrorist
groups who employ patterns of criminal activity and campaigns of misinformation to target
legitimate companies and industries with fabricated environmental claims and other purported
misconduct, inflicting billions of dollars in damage. The network?s pattern of criminal and other
misconduct includes (i) defrauding charitable donors and cheating federal and state tax
authorities with claims that they are legitimate tax-free charitable organizations; (ii) cyberattacks;
(ii) intentional and malicious interference with their targeted victim?s business relationships; and (iv) physical violence, threats of violence and the purposeful destruction of
private and federal property. Energy Transfer is the latest legitimate business targeted by this
Incredibly, even though Greenpeace is the first named defendant, the lawsuit mostly focuses on other groups, like Earth First using what the filing calls “the Greenpeace Model” and only mentions in passing that Greenpeace was supportive of the Dakota Pipeline protests and organized some donation drives.
As you read through the lawsuit, it really reads like those who wrote it believe that getting attention for your protests is somehow illegal.
One of the ways the corrupt organizations conceal their true operations is to create
the illusion that their ?campaigns? and high-profile ?events? are grassroots actions by volunteers
and local ?victims? who are spontaneously rallying together for the promoted cause. In fact,
these events are organized, funded, and produced by these corrupt ENGOs to create sensational
media attention and drive traffic and donors to their websites. Wolfpacks of corrupt ENGOs
regularly collaborate on these manufactured attacks, including ?old-line? ENGOs like
Greenpeace and radical and fringe eco-terrorists who engage in disguised direct actions
involving violence, property, and business destruction, and fabricated claims and ?evidence? of
misconduct by those targeted by the campaigns. These radical fringe groups create public
spectacles and generate fodder for putatively legitimate environmental organizations to trumpet
via-press releases and use as the basis to disseminate a parade of falsehoods deployed as part of a
plea to the general public to ?get involved? by donating or taking their own, more benign, direct
action such as placing calls, or writing letters. Thus, at the heart of this fraudulent scheme are
fundamental lies as to what these ENGOs do, their substantial funding, well-organized
structures, powerful influences, and purposefully coordinated activities designed to create the
appearance of an independent ?grassroots? uprising by the people. These lies are perpetuated on
donors, tax authorities, targets and their critical market constituencies, and the public at large.
Again, even if you disagree with Greenpeace’s (and others’) positions and/or tactics, it’s pretty crazy to argue that they’re illegal in any way, let alone a form of racketeering. Much of the rest of the filing reads like an advertisement for the Dakota Access Pipeline and how wonderful and safe and amazing it will be. It seems almost written more for public consumption than to make any kind of legal argument. There’s also a section on cyberattacks, in which Energy Transfer Partners argues that silly Anonymous videos, which include doxing (and, yes, the lawsuit complains of “doxing”) are all a part of the grand RICO conspiracy. You’d think that someone would inform these lawyers that anyone can just declare themselves a part of Anonymous and do what they want. It’s like the opposite of an actual conspiracy. And while it does appear these may have lead to DDoS attacks on Energy Transfer, we’ve discussed before how DDoS can be seen as a form of protest — i.e., a form of protected expression. And, here, there’s no way to tie such actions back to organizations like Greenpeace anyway.
In this case, Energy Transfer is arguing that its damages are $300 million — meaning a potential $900 million award should it prevail — a sum that likely would put Greenpeace completely out of business. Importantly, the lawsuit was filed in North Dakota, which has no anti-SLAPP law and no caselaw around anti-SLAPP issues. So, this should be yet another reminder for why all states need stronger anti-SLAPP laws and we need a federal anti-SLAPP law, as soon as possible.
Oh, and in case you’re wondering, yes, the lawyers on this filing are also from Trump’s favorite law firm. It’s the same Michael Bowe from Kasowitz.
Filed Under: anti-slapp, california, dakota access pipeline, defamation, free speech, marc kasowitz, michael bowe, protests, rico
Companies: energy transfer partners, greenpeace, resolute forest products