Simon Taylor blog / Responding to SLAPPs (Part I)

Simon Taylor, Co-founder and Director of Global Witness and winner of the Skoll Award among others, has an unflinching blog on up on the Business & Human Rights Resource Centre on Chevron’s vicious retaliatory litigation campaign against its own contamination victims in Ecuador and their lawyer, Steven Donziger:

Chevron has lost this fight.  It has lost the legal fight in Ecuador (the jurisdiction it fought to be heard in, but which it now denigrates), where multiple courts have re-affirmed the judgement against Chevron and the multi-billion-dollar compensation penalty it must now pay.  It has also lost the fight in the public domain, where its legal strategy seems to be a vindictive effort, by all means, to attack its opponents rather than be held accountable for its liabilities.  This charade recently continued with a legal attack, via the New York Bar Grievance Committee, which then applied to court, succeeding in suspending the law licence for the Ecuadorian community’s US lawyer, Steven Donziger – a process which took place like a summary execution, with no hearing, and no opportunity for the provision of evidence.  The bar designated Donziger an “immediate threat to the public order” – this about a man who graduated in the same law school class as President Barack Obama, and in his 25 years of law practice, has never received a single complaint.

Taylor goes on to describe some of the many reasons why Chevron’s claims against Donziger and the Ecuadorians are corrupt unreliable, as myself and many others have done. But the blog is more important for its attention to the broader context–which Taylor speaks to on the basis of two decades of experience investigating the extractives sectors–than on the specific details of the retaliation, egregious though they may be.

It is increasingly clear to me how the core of any realistic solution to the problem of “the new corporate playbook” of retaliation against human rights defenders must keep a focus on the forest, even when discussing individual trees. This goes against the instincts of many advocates, who  know that drilling-down on the details of individual abuses is typically the best strategy both for garnering public attention and concretizing the human rights issues at stake.

But complex corporate retaliation cases (instances of SLAPPs, Strategic Lawsuits Against Public Participation) are different, and the modality of our response must be different too, for structural reasons.

While the ultimate purpose of a SLAPP is intimidation, it succeeds as much by way of distraction as by attack. A SLAPP is a play to affect the larger public discourse, not just (or not at all) to achieve a judicial outcome. Merely dragging the attention and miscellaneous anxieties of the public (and the targeted defendants) into the muck of the SLAPPer’s exaggerated, manufactured, decontextualized claims counts as a victory, even if the audience comes away disgusted with the SLAPP. The victory is  distraction and drainage of time and resources, but also more than that.

Every advocate works to properly frame and promote her advocacy. Every advocate desperately competes for attention in a hyper-competitive environment of contemporary injustices and responsive causes, ideas, approaches. Every advocate I know is flooded with obligations, commitments, ambitions–there is too much work out there, in our moment, needing to be done.

A sophisticated corporate SLAPP can poison advocacy on all these dimensions with little regard to the merits. The corporation swaggeringly deposits itself not just on the advocate’s daily to-do list but also into the advocate’s public-facing identity and messaging. While advocates can transform the SLAPP’s presence in their frame to their advantage–as illustrating the vitality of their challenge to entrenched interests, for example–it cannot be removed from the frame. And while sometimes a SLAPP will generate its own attention, more often it is stealing from what allotment of public concern an advocate can realistically expect in total. Thus even where the public focuses on the bogus SLAPP and comes away disgusted, the victory can be hollow for the advocate’s underlying work.

Also, responding to bogus claims requires time and resources (lawyers, experts, document processing and other legal burdens) that many advocates just don’t have, which means they can drown in the muck of even the most meritless of claims. The truth does not just prevail on its own dime, at least not in the US legal system. Additionally, even the most bogus SLAPPs can put enormous emotional weight on targeted defendants, as I hope to explore in future writing.

Advocates know all these uncomfortable realities. Which means they can be intimidated (“chilled,” to put it more gently) by the prospect of meritless claims. They will steer clear, when they can, of corporations and controversies that threaten to muck up the delicate art of framing and advocating that they are engaged in.

Because a SLAPP is fundamentally a bid for attention and distraction, we must be careful in how we respond to new (and old) corporate attacks on advocates. Entering a corporate SLAPP frame even to dismantle it may be conceding too much. Sometimes it will be important to focus, as Taylor largely does, on contextual factors such as the opportunism of the attack (the extent to which it conveniently serves the SLAPPer’s larger strategic purposes), the reliability of the SLAPPer as a “prosecutor” of its claims, and similar.

An important new Anti-SLAPP movement is emerging. @SLAPPtaskforce #protecttheprotest. It is time for powerful advocacy, but also a time for analysis and conversation about what works and why. Anti-SLAPP efforts are not new. They have, however, been largely ineffective. We need to be looking deeper to find out why and guide our efforts going forward.

First of hopefully many dismissals in abusive SLAPP lawsuit against DAPL protest organizations

The decision, by inimitable senior federal district judge Bill Wilson (a semi-retired judge from Arkansas sitting by designation in the District of North Dakota) dismisses all of Energy Transfer Partners utterly bogus claims against the Dutch NGO BankTrack. The Earthrights analysis is here. The dismissal is so blindingly obvious and necessary on the merits that it can be hard to cheer for: yay for the return of a bare minimum of normalcy!

However, the decision is notable for the power of the counter-punch it packs right at the heart of ETP’s RICO theory, i.e. that a participant in a social movement protest can be drawn into the notoriously impossible tar-pit of “conspiracy” and “racketeering” under RICO merely because someone else in the protest engaged in demonstrably illegal behavior. As Earthrights notes, the judge uses an example pretty clearly geared to catch the attention of ETP’s counsel, the Kasowitz Benson firm, which is famous for representing President Trump:

Under Energy Transfer’s interpretation, President Trump, who has solicited donations to help him end illegal immigration and stated immigrants are rapist, drug dealers, and animals, would be part of a RICO enterprise with racist criminals who have violently attacked immigrants on these express grounds.

Even more interesting will be to see what kind of attorney fees award BankTrack gets. BankTrack’s press release hopes that “the ringing rejection of this case will discourage other corporations from launching these kinds of SLAPPs.” Not sure about that. ETP got a hell of a lot of press for its narrative; even though the claims were obviously baseless from the beginning, the “sophisticated” legal press couldn’t help itself but report on them seriously, even breathlessly. (“Greenpeace should be worried.”) The lawsuit invariably put a lot of pressure on BankTrack in the process, and the organization is likely to be more “restrained” after the lawsuit even though it won — that’s called “chill” in First Amendment parlance. However, if ETP has to pay up a few hundred thousand dollars to cover every penny that BankTrack spent on the case and fully pay up environmental lawyer Robin Martinez at his top billable rate, then companies might really start thinking twice about filing these suits and organizations like BankTrack might be able to adopt a genuinely “bring it on” attitude, which is the only way to truly defeat the chill the lawsuit has already inflicted.

Ecuadorian Constitutional Court Affirms Environmental Judgment Against Chevron

More on this to come (hopefully elaborated in other forums and venues) but here is the decision (in Spanish) and here are the basic parameters:

  • This is the fourth Ecuadorian court to uphold the environmental liability judgment against Chevron, the third layer of appeal. All Ecuadorian affirmances have been unanimous.
  • The jurisdiction of the Constitutional Court (CC) allowed Chevron to challenge any aspect of the proceedings in Ecuador for lack of due process, use of improperly obtained evidence, etc. None of Chevron’s challenges were sustained.
  • The decision elaborates a strong human rights-perspective on the underlying questions about the fairness of the judgment and its magnitude. I hope to describe this in more depth shortly.
  • The decision was emitted well into the term of office of President Lenin Moreno, who is aggressively seeking to curry favor with the United States, so any sort of claim that the CC decision was politically influenced to Chevron’s detriment is a non-starter.
  • The decision is now the most current analysis of the environmental judgment and the controversies surrounding it, made by the court with the broadest jurisdiction to consider it and the challenges to it. Again, the judgment was sustained in full and unanimously.

Here is the BHRRC page on the development. I’ll add more links and analysis as it comes up.

SLAPPs Watch: Bolloré

Great show of support from civil society for the French human rights litigation org Sherpa and others. The self-explanatory paragraph:

Since 2009, more than 20 defamation suits have been brought in France by the Bolloré group or Socfin in response to articles [about protests by rural residents and farmers who live near plantations run by these two companies in West Africa]. The targets of these actions have included France InterFrance CultureFrance InfoFrance 2BastamagLibérationMediapartRue 89, Greenpeace, ReAct and Sherpa. More than 40 reporters, photographers, media lawyers, NGO representatives and media CEOs have been targeted. . . . By bringing defamation suits with such unprecedented frequency – even when they are abandoned mid-course – the Bolloré group is now retaliating in an almost automatic manner to any public reference by outsiders to its African activities.

The scandal is that French courts, like those in every other country, are happily open-for-business for these suits. Modern judicial systems have developed no meaningful defenses to this utterly outrageous, unapologetic abuse of process. (The only meaningful attempt — i.e., anti-SLAPP procedures — has repeatedly shown to provide only the most minimal protection or fail outright.)

We need better thinking on this, and we need it badly.

In the meantime, great to see civil society organizations showing up for each other and for democratic and free-expression principles.

IN CANADA, CHEVRON TRYING TO BLOCK ECUADORIANS FROM USING U.N. DECLARATION TO SUPPORT HISTORIC POLLUTION CASE

[ From TheFirstNationsCanada.com ]

In a Canadian court, Chevron is trying to block submission of a legal brief over how the company’s attempt to evade paying a $9.5 billion environmental judgment in Ecuador violates both Canadian and international law regarding the rights of indigenous peoples.

In a submission before the Ontario Court of Appeal in Toronto, Ecuadorian rainforest communities cite the United Nations Declaration on the Rights of Indigenous Peoples in support of their lawsuit to collect the Chevron debt in Canada. The judgment against Chevron was affirmed unanimously in 2013 by Ecuador’s highest court.

A hearing over Chevron’s attempt to block the new argument is scheduled for January 16 before the Ontario Court of Appeal in Toronto. If the submission is allowed, the Ecuadorians plan to use the U.N. Declaration during a critically important appellate hearing scheduled for April that will help determine whether they can seize the assets of a Chevron subsidiary in Canada to force the company to comply with the Ecuador judgment.

“Chevron’s attempt to deny the latest legal petition concerning indigenous rights from being heard is gutless and a sign of the company’s increasing desperation,” said Patricio Salazar, the lead Ecuadorian lawyer for the affected communities.

“The arguments that Chevron is trying to suppress outline in clear terms the numerous ways in which the company has violated international law by polluting indigenous ancestral lands and then deliberately obstructed legitimate efforts to seek compensation through the courts,” said Salazar.

In the legal brief, the Ecuadorian communities cite several provisions of the United Nations Declaration to support their lawsuit to seize Chevron assets in Canada. These include “the right to … prompt decisions through just and fair procedures for the resolution of conflicts” and “fair and equitable compensation” for their territories that have been damaged by oil extraction and other environmental harms.

The U.N. General Assembly approved the Declaration On The Rights of Indigenous Peoples in 2007 by the overwhelming vote of 144-4. The document since has been adopted as domestic law by both Canada and Ecuador, but it obviously did not exist for several years after the litigation against Chevron began in 1993.

Chevron, which sold its assets in Ecuador during the trial, recently had its General Counsel threaten the Ecuadorian communities with a “lifetime of litigation” if they persist in pursing their claims. The case has lasted a whopping 24 years largely because of Chevron’s forum shopping and use of at least 60 law firms and 2,000 legal personnel to file thousands of procedural motions to delay the process at almost every important juncture.

Chevron’s attempt to deny the Ecuadorians the right to file arguments based on indigenous rights – as distinct from simply filing its own legal brief to oppose it – is unusually aggressive, although not surprising given the company’s long record of trying to undermine the claims of the communities. Chevron was found guilty by three layers of courts of Ecuador of having deliberately dumped billions of gallons of toxic oil waste as a cost-saving measure, causing a spike in cancer rates and creating a public health catastrophe. Conditions are so bad that locals call the area the “Amazon Chernobyl”.

For more than two decades, Chevron has tried to block the Ecuadorian communities who live in the Amazon from pressing their claims. The latest Chevron maneuver is to assert that its assets in Canada are immune from collection because they are held by a wholly-owned subsidiary. The communities won the judgment after a hard-fought trial that lasted from 2003 to 2011 and produced 105 technical evidentiary reports relied on by the court to confirm Chevron’s responsibility for the dumping […]