Suing to Silence: A Dangerous Trend

Environmental and human rights activists and organizations have acquired some serious enemies. Most of us know that challenging the world’s most powerful corporations is a risky business, but how risky is it? In the Global South, human rights defenders and environmental activists are routinely threatened, kidnapped, jailed and killed for their work. Most advocates in the U.S. benefit from comparatively stronger rule of law and a more robust judicial system, so the risk of defending people and the planet from corporate abuse here should be pretty low, right?

For great overview of why that risk is getting higher, check out this new video:

While the risks to affected communities and Global North advocates are different, threats in the North are quite real and progressively worsening.To protect their finances and reputation, some large corporations are now employing a twisted legal tactic that is setting a very risky precedent for free speech.

This new legal tactic seeks to deplete the resources of public interest advocates by bombarding them with meritless legal suits. These types of lawsuits are called SLAPP (Strategic Lawsuit Against Public Participation) suits. SLAPP suits are “filed strategically by a corporation against a group or activist opposing certain action taken by the corporation, usually in the realm of an environmental protest.” These cases usually involve libel, slander, racketeering or restraint of business. Many states have anti-SLAPP statutes that are made to protect free speech and encourage a speedy trial. While even the corporations prosecuting such actions know they will often not succeed in court, their motivation is to drain the activist organization of money through litigation fees. This strategy of intimidation and bullying is being utilized by corporations to sue their public interest adversaries into silence.

One organization experiencing the enormous impact of this phenomenon is Greenpeace. Both Resolute Forest Products and Energy Transfer Partners have filed apparently frivolous SLAPP lawsuits against Greenpeace. Resolute Forest Products is one of the largest logging companies in North America and practices most of its logging in the Canadian Boreal Forest. Greenpeace launched a campaign in which it called Resolute a “Forest Destroyer.” In response, Resolute hired the law firm Kasowitz, Benson, Torres--Trump’s personal firm for many years--to sue Greenpeace. The suit alleged $7 million Canadian dollars in damages for defamation and economic interference. This lawsuit appears to be a classic SLAPP suit, as the claims made by Resolute had very little chance of succeeding in court. Nevertheless, the case served as a threat to Greenpeace and other nonprofits.

Three years later, Resolute sued Greenpeace again--this time in the United States. The company accused Greenpeace of making false statements and fabricating evidence that caused an alleged $300 million in damages to the company (Resolute). Resolute’s claim was brought under federal laws like the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO suits such as this one are increasingly common, even though Congress designed RICO laws to stop groups like the mafia--not environmental rights activists. It’s likely that Resolute chose to sue under RICO because any defendant found liable must pay treble damages: a form of damages that triples the total amount awarded, under the rationale that the plaintiff’s suit is also detering bad behavior that harms society as a whole.  Perversely, this pressures defendants to settle, even when they are not in the wrong. And even more perverse, punishing the nonprofit watchdogs who protect our democracy would be the source of significant societal harm.

Thankfully, in October 2017, a federal court in California ruled that RICO did not apply in this case and dismissed all claims against Greenpeace. While this is a victory for Greenpeace, the ramifications of this case are significant. It is painfully evident that corporate actions such as these are a major threat to free speech and advocacy.

Just one year later in August 2017, Greenpeace was hit yet again with a meritless lawsuit. This time, the plaintiff was Energy Transfer Partners--the company behind the infamous Dakota Access Pipeline. Energy Transfer is also represented by the Kasowitz Firm. Greenpeace was sued for allegedly organizing the Indigenous-led protests that caused Energy Transfer to suffer “billions of dollars in damages” (Greenpeace), as well as inciting “eco-terrorism”. Not only does this accusation devalue the importance of the largest gathering of tribes in 100 years, it is yet another example of suing to silence. Greenpeace will fight this case in court, but the financial impact of this type of litigation cannot be ignored. Not every advocacy group is as financially and legally equipped as Greenpeace, and the possibility of these SLAPP suits succeeding is a major threat to smaller groups and individual activists.

Greenpeace is not the only one suffering from these types of lawsuits. For example, Cristobal Bonifaz was one of several human rights attorneys who represented Ecuadorian plaintiffs who claimed they developed cancer as a result of Chevron’s oil spills. After the case was dismissed, Chevron brought a 4 million-dollar suit against Bonifaz, accusing him of malicious prosecution. Luckily, Bonifaz was able to defend himself with California's anti-SLAPP statutes. (ABA Journal)

In another case, Dole Food Company brought a defamation lawsuit against Fredrik Gertten and his team of Swedish documentary filmmakers who created the film Bananas!. In the film, Gertten followed the case Tellez v. Dole and exposed the plight of exploited Nicaraguan banana plantation workers. Gertten ultimately won the defamation case by using California’s anti-SLAPP laws, and the judge ordered Dole to pay Gertten $200,000 for the cost of its frivolous litigation. Gertten went on to create another documentary--Big Boys Gone Bananas!--about Dole’s attempts to silence him through our legal system. Another repeat offender, Alabama-based Drummond Coal, has ongoing RICO and libel actions against attorneys representing thousands of Colombian citizens who sued for Drummond’s alleged complicity in the murder of their family members.

Although many SLAPP suit victims have successfully defended themselves, this vicious litigation tactic is an alarming trend. Today, only 28 states have enacted anti-SLAPP laws, all of which vary in the scope of protection. If this trend continues, a dangerous amount of power is placed in the hands of major corporations. What will happen when people become too afraid to speak truth to power?

Madison Kewin is a fall communications intern with Corporate Accountability Lab. Charity Ryerson is a co-founder and legal designer for Corporate Accountability Lab.

Photo credit: Pax Ahimsa Gethen (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons