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.

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.

Materially misleading?

An Argentine trial court yesterday declined to continue the recognition action on the Ecuadorian judgment, largely for the same reasons as the Canadian trial judge in 2013 (reasons that were later reversed on appeal), namely the purported lack of any assets of Chevron Corp. (pretending that its Argentine subsidiaries are not its assets) in the jurisdiction.

Chevron’s response in a press release issued today (in a quote attributed directly to its general counsel Hew Pate):

“We are confident that any jurisdiction that observes the rule of law and examines the facts will similarly find the Ecuadorian judgment to be illegitimate and unenforceable.”

This pretty clearly implies that the Argentine court found the Ecuadorian judgment to be “illegitimate,” which is exactly what Chevron is desperate to suggest — i.e., that it’s false “fraud” narrative is picking up steam in enforcement jurisdictions.

But as noted, the Argentine decision is entirely on the purported lack of assets in the jurisdiction. It mentions the word “fraud” only once, as it summarizes Chevron’s own submissions, and it conspicuously ignores Chevron’s arguments in this regard. In fact, it states the following:

“It is important to highlight that it is only the fact of not having established a link between Chevron and the Republic of Argentina that blocks the proceeding of the recognition.

(Cuadra destacar que la sola circunstancia de no haberse acreditado en debida forma un punto de conexión entre la sociedad aquí emplazada “CHEVRON CORPORATION” y la República Argentina obsta a la procedencia del presente Exequátur.)

It thus quite clearly did not “find” the Ecuadorian judgment to be illegitimate. Chevron’s statement can hardly be appreciated as a mistake, given that it so directly serves Chevron’s interest in teh narrative it wants to put out.

Sloppy work, Chevron. May come back to haunt you.

Canadian courts re-emerge from the Land of Make Believe – Just in time…

Great news today, except that the progress it represents is only the reversal of a terrible and unjust turn of events that never should have happened in the first place. Canadian courts have been hearing an action to recognize/enforce the historic Ecuadorian environmental judgment against Chevron Corp. for over five years now. Last month, a Canadian appellate motions judge somehow decided it was “in the interests of justice” to order the indigenous and subsistence farming communities who I represent, and who have been pursuing justice for a total of over 25 years, to post a bond of $1 million for Chevron’s legal fees, if they wanted to continue their case.

Needless to say, the whole plan, devised by Chevron, was to kill off the enforcement action in Canada. Obviously there is no way the communities (or any of the backers who have supported them over the years with much smaller levels of support) could come up with that kind of money. The fact that Chevron came up with the plan was not surprising; the fact that an appellate judge ran with it, “in the interests of justice,” was shocking.

Thankfully there is a “motion to vary” procedure in Canada that allowed the Ecuadorians to take the issue to a separate three-judge panel. Still the odds were against them, because the panel would review the motions judge’s discretionary decision with considerable deference.

The panel reversed — and loudly, in a decision that hopefully charts a new course for proceedings in Canada.

What to make of it?

Ultimately, the enforcement case in Canada is fundamentally about legal fiction versus historical reality. The massive contamination that you can still see at Chevron’s former operations sites is historical reality. The gravesites of (a statistically elevated number of) cancer victims in Ecuador is historical reality. But for over five years, Chevron has been resisting enforcement on the basis of layer upon layer of legal fiction:

  • the fiction that Chevron Corp has “no assets” in Canada, itself based on seven fictional layers of subsidiaries between Chevron and Chevron Corp.;
  • the fiction that Chevron is not responsible for the acts of its merger partner, Texaco;
  • and the countless fictions embedded in its unapologetic “demonization” campaign against the Ecuadorians, which pretends that the environmental case is a “sham” or a “fraud,” that it’s about “American plaintiffs lawyers” not Ecuadorian victims, that the Ecuadorian court system is “incompetent” and “corrupt” (even though Chevron itself had the case sent there), and so on.

The panel chose the side of reality. In its decision, it repeatedly instructs on the importance of “taking a step back” from the narrow legalism that Chevron used to win before the motions judge and instead “conduct a holistic analysis” that “considers all the circumstances of the case.” When all those circumstances are allowed to enter the courtroom, the picture changes dramatically.

  • This case is not about “plaintiffs lawyers.” Little research is required to see that this is an historic case, long supported and driven by social movements in Ecuador and indigenous and non-indigenous allies all over the world. “This is public interest litigation,” the panel acknowledged. So simple, and yet somehow Canadian courts had forgotten this.
  • Chevron doesn’t need its legal fees paid. How obvious is this? And yet, nary a word was said in all prior decisions on the issue. The panel confronted it directly: “Chevron Corp and Chevron Canada have annual gross revenues in the billions of dollars. It is difficult to believe that either of these two corporations . . . require protection for cost awards that amount or could amount to a miniscule fraction of their annual revenues.”
  • This motion was never really about the costs – it was a strategic attempt to kill of the entire litigation. Again, blindingly obvious, yet no earlier court dared speak this truth. Focusing again on the “holistic” entirety, the panel did not shy away: “Chevron Corporation has and, it may be anticipated, will employ all available means to resist enforcement of the Ecuadorian judgment. This, of course, is within its rights. However, this reality makes it difficult to accept that the motion for security for costs was anything more than a measure intended to bring an end to the litigation.”
  • The Ecuadorian environmental judgment is at the center of this case. It is, after all, the judgment being enforced. Yet the motions judge never referenced the substance of the Ecuadorian judgment, instead relying repeatedly on the collateral attack judgment that Chevron obtained from its home country courts after it lost the Ecuadorian case. The judge’s reliance on a U.S. judgment, no matter how suspect (among other troubling features, the U.S. judgment relied on illegally paid-for “fact” testimony that has now been debunked), instead of even considering the Ecuadorian judgment at the heart of the proceeding points to the deeply-rooted issues of implicit bias that Canadian courts have long struggled with in dealing with aboriginal claims and developing country courts. The panel, by contrast, properly ignored the collateral attack judgment and instead noted that the Ecuadorian judgment’s findings have not,  in fact, been “undermined” at all in Canadian courts. “Accept[ing] the finding that underlie the Ecuadorian judgment,” the panel noted, it would be especially perverse to order the Ecuadorians to pay Chevron’s legal fees because the Ecuadorians are impoverished in part due to the very acts of Chevron/Texaco itself.

The panel charts a new course. Now, the Ontario Court of Appeal did just that three years ago, when it reversed the last round of erroneous decisions by a Canadian trial court judge unwilling to call Chevron to account for its countless abuses. It was affirmed by the Canadian Supreme Court — but then, it was back down to another hesitant trial judge, starting the whole process over again, losing years in the process. As noted, we are over five years into the enforcement case in Canada and we still haven’t finished dealing with preliminary challenges in what is supposed to be a “streamlined” enforcement/recognition process.

The Ecuadorians are still living through a miscarriage of justice in Canada. The Canadian courts re-emerged from the realm of pure fantasy with today’s reality-based decision, but a hard, very real mountain of challenges remains. Much more to be said when time allows…