Anti-SLAPP Coalition Files Amicus Brief in Donziger Case

[ Press release here. Amicus brief here. ]

Image credit: Amazon Watch

Washington, DC – Late last night, ten leading civil rights, human rights, and environmental organizations – members of the national coalition challenging Strategic Lawsuits Against Public Participation (SLAPPs), the Protect the Protest task force – filed a brief to the United States Court of Appeals for the Second Circuit demonstrating Chevron’s corruption of the judicial process in its decades-long effort to avoid paying for a cleanup of 16 billion gallons of toxic waste it dumped into the Amazon. Furthermore, the brief asserts the appointment of Chevron’s former law firm Seward and Kissel to criminally prosecute attorney Steven Donziger is highly improper and undermines the very notion of an impartial judiciary.

More than a decade ago, Chevron set out to “demonize” Steven Donziger, the human rights lawyer who held Chevron accountable for years of pollution in the Ecuadorian Amazon – first in a U.S. lawsuit and then in Ecuadorian courts. After losing the $9.5 billion judgment in Ecuador, Chevron engaged in a pattern of corrupt and illegal behavior to win a retaliatory SLAPP suit in the U.S. by vilifying the plaintiffs and their lawyers, illegally paying its star witness and harassing, intimidating, and punishing those who supported Donziger.

Donziger has been under house arrest for over ten months while appealing an order to surrender his computer, cell phone, and email passwords to the court. Now, the judge is permitting the use of private lawyers as prosecutors after the U.S. Attorney’s Office twice refused to prosecute. The private law firm, Seward and Kissel, previously represented Chevron in private practice and continued coordination with Chevron.

Paul Paz y Miño, Amazon Watch Associate Director and Protect the Protest task force member said: “Reasonable observers may be tempted to conclude that the court picked a side by retaining such a partial prosecutor. Permitting Seward and Kissel to remain as prosecutor would undermine confidence in the judiciary.”

SLAPP suits are filed by powerful actors, often major corporations, in an attempt to ruin defendants who have engaged in constitutionally-protected activity – including the right to petition the courts. SLAPP suits often follow a pattern of serial bullying and may sweep up numerous parties with some connection to the case. While SLAPP suits are typically civil litigation such as defamation suits, the fact that a law firm connected to Chevron is pursuing a criminal prosecution here does not mean that the case is not a SLAPP suit – it means that it marks a dangerous new frontier in such tactics. These organizations are submitting the amicus brief to show that as long as this prosecution is not independent of Chevron, it should be considered a SLAPP suit – the latest in a long pattern of abuse of the law by Chevron and its counsel.

Paul Paz y Miño continued: “Steven Donziger is being criminally prosecuted not only for his advocacy but by the very targets of his advocacy. Chevron has not merely sued its adversary; it is pulling the strings of a criminal prosecution. That the prosecutor of Chevron’s nemesis is Chevron’s former law firm not only undermines confidence in the prosecutor’s impartiality; it would also undermine confidence in the impartiality of the judiciary.”

The amicus brief was submitted by:
Amazon Watch
The Center for Constitutional Rights (CCR)
Center for International Environmental Law (CIEL)
EarthRights International
Greenpeace International
The International Corporate Accountability Roundtable (ICAR)
Palestine Legal
The Partnership for Civil Justice Fund (PCJF)
Portland Rising Tide
Rainforest Action Network (RAN)

What counts as victory in Resolute v. Greenpeace?

Headlines from the growing anti-SLAPP movement on the recent decision by Judge Tigar in N.D. California dismissing most of Resolute’s bogus claims against Greenpeace, some of its employees, and STAND.earth:

A Win for Advocacy: Court Dismisses SLAPP Suit Against Environmental Activists [CIEL]

District Judge Dismisses Corporate-Led Racketeering Claims Against Activist Groups [Taskforce]

DISMISSED! Vast Majority of Lawsuit Defeated! [Greenpeace]
That last one hints a little bit at the problem that remains: the court didn’t dismiss the Resolute’s SLAPP suit entirely, it left a few defamation claims hanging. That means that litigation against Greenpeace (and certain of its individual employees caught up in this sludge match) are heading into intrusive discovery, burdensome summary judgment proceedings, and potentially trial. Per Resolute’s lawyer: “We are pleased that the Court has correctly held that Resolute has properly alleged defamation and unfair competition claims and we will be proceeding aggressively through discovery to trial.”

I get the inclination to declare victory, build momentum and positive energy, and start framing Resolute’s tactics as failing practically as well as ethically. It is also important that Judge Tigar took RICO off the table entirely and returned the lawsuit, however sordid, to the routine realm of defamation. Greenpeace has an incredibly strong case and will almost surely win on summary judgment. So starting the march toward “victory” is perhaps the right move and perhaps the one I would be making if I were representing these defendants.

But for the larger anti-SLAPP movement, it is far too quick and far too simple. As an advocacy matter, the recent anti-SLAPP campaign work of course has a larger focus than just RICO attacks, which are rare. The focus is on all litigation of a certain purpose and on a certain tactical logic, namely using the burden and anxiety produced by litigation to chill speech and vigorous participation by advocates on public issues like environmental defense. These characteristics can apply to defamation claims just as well as RICO. From this perspective, the ugly reality is that the headlines could read: Judge allows lawsuit targeting Greenpeace environmental advocacy to proceed.

And while it is good that the case is narrower, Resolute’s ability to impose burden and intrude on Greenpeace’s constitutionally protected associational activity dramatically escalates past the motion-to-dismiss stage. Resolute will seek dozens of depositions, where its lawyers will stray from the relevant, narrow topic — but the rule at depositions is that you have to answer a question (and challenge it only later) unless you are asserting a privilege. Resolute will also ask for the universe in terms of documents, and while it is easier to narrow document productions on the basis of privilege objections, if Greenpeace resists on the basis of its constitutional rights or privileges, it will have to engage in significant additional legal briefing and maybe even compile an incredibly burdensome log of all documents they claim are privileged.

Finally, it is hard not for conspiracy-minded among us (or those of us who have unfortunately learned to respect the deviousness of the warlike legal teams these companies hire) not to wonder if this was Resolute’s plan all along. As mentioned, the defamation claims are weak. So weak. They should have been dismissed. But by packing them next to a scarecrow army of 296 utterly batshit RICO claims, the weak defamation claims start to look reasonable.

It also appeals to the solomonic instinct, which is strong in every judge I’ve ever been in front of in 15 years of practice. Give a little bit to one side, a little bit to the other. When you issue a decision and both sides claim victory, that’s a smart judge.

Here, all it means it that well over two years after it was filed, now thousands of pages of filings and millions of dollars of legal fees later, we are going to have to keep watching the Resolute v. Greenpeace case. Greenpeace obviously has the energy and resources to keep fighting — and most critically, it has the unwavering support of the environmental and human rights communities. But for most of the rest of the advocates in those communities, watching the case, the SLAPP dynamic is still hard at work.

As Michael Marx told Inside Climate News last year:

An attack against Greenpeace and Stand, two groups that have been really at the forefront of corporate campaigns, is not just an attack on those groups but is an attack on the strategy that NGOs have used to really bring corporations back under control in terms of their social and environmental behavior.

With huge respect to Greenpeace’s victory for what it was, the recent decision is unlikely to dent growing corporate enthusiasm for SLAPP tactics. In fact, perhaps the opposite. Thus an equally valid strategic response might have been to decry it as a failure to confront the main problem presented by the case. Yes, a federal judge needs to fairly process a litigant’s claims. But Resolute’s lawyers used their bogus claims, and the hyperbolic attack language in their briefs, to frame the perception of reasonableness around the facts of the case (and the larger identity of Greenpeace and movement activism) powerfully in their favor. Anti-SLAPP efforts should be aimed at correcting that shift, which in turn could require more loudly defending the principled outer-ring argument on their end, i.e. no SLAPPs on advocacy, period, go home. From this perspective, the early celebrations of victory can be seen as validating the result of a framework that is still dangerously skewed against vigorous  advocacy.

Back to Basics: Revisiting Chevron’s abandoned oil fields in Ecuador — and the people who live there

A new documentary largely successfully avoids the infinite distractions generated by Chevron’s colossal retaliatory litigation campaign and re-focuses back on what happened–and what is happening today– in Ecuador…

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.