Davis Wright Tremaine partners Lance Koonce and Laura Handman and counsel Lisa Zycherman are our Litigators of the Week. The trio successfully defended Greenpeace in a pair of cases that could have criminalized organized protest and severely chilled the speech of everyone.
Litigators from Kasowitz Benson Torres sued the non-profit on behalf of Energy Transfer Partners, which operates the Dakota Access Pipeline, and Canadian timber giant Resolute Forest Products. The facts of each case were different but the novel legal theory being asserted was the same: attempting to invoke the RICO statute to suppress dissent. Koonce, Handman and Zycherman discussed their back-to-back wins on Jan. 22 and Feb. 14 in the cases.
Lit Daily: Who is your client and what was at stake?
Lance Koonce: Greenpeace is a global network of independent, nonprofit entities with more than three million individual supporters. In this case we represented both Greenpeace International, based in the Netherlands, and the U.S. entity, Greenpeace, Inc., as well as Greenpeace’s “Pipelines Organizer,” Charles Brown.
Laura Handman: What was particularly alarming about this lawsuit was that it threatened the very core of environmental and social advocacy. It sought to use the federal racketeering laws (RICO), which were originally designed to address organized crime, to chill speech on an issue of significant public import—namely, the impact of pipeline construction on the environment.
RICO carries with it the potential imposition of treble damages. Courts have dubbed it a “thermo-nuclear” remedy—here, the claim was for $900 million. If this type of claim were to gain a successful foothold in the courts, it could pose an existential threat to advocates of all kinds. Indeed our client publicly stated that a loss here would have led to Greenpeace USA shutting down. That is why so many groups who help defend against encroachment on the First Amendment were very concerned about this case.
Set the stage—what was Greenpeace protesting in North Dakota, and how were they doing it?
Lisa Zycherman: The protests against the 1,172-mile long Dakota Access Pipeline were actually under way before Greenpeace got involved. In the spring of 2016, Native American tribes in North Dakota began protesting approval of pipeline construction and these protests eventually attracted the involvement of many more individuals and advocacy groups.
The protests focused on many concerns over the way the pipeline was designed and approved, the route it took, and the potential environmental impact. Greenpeace became involved in the fall of 2016—widely publicizing the protests and the environmental risks from the pipeline, raising funds to help oppose the pipeline, and running food and clothing drives to support the protestors on the ground in North Dakota. Greenpeace also sought to convince Energy Transfer’s partners to put financial pressure on the company.
This was actually the second such suit against Greenpeace by Kasowitz Benson Torres lawyers on behalf of business interests. How was the North Dakota case similar to one filed in 2016 on behalf of Canadian timber giant Resolute Forest Products?
Lance Koonce: The Resolute case was filed in federal court in Georgia, and we successfully removed it to the Northern District of California on the grounds of improper venue. It involved claims that Greenpeace and others made false statements about Resolute’s poor environmental practices in connection with its logging in the boreal forest in Canada.
But while the facts of the two cases are different, the legal claims were almost identical. Energy Transfer, just like Resolute, alleged that basic advocacy methods such as writing articles and letters publicly criticizing the company, organizing boycotts, and the like, essentially constituted criminal behavior because it amounted to “fraud” perpetrated by interstate mails and wire.
Taken together, what was novel or unprecedented about the legal theories being asserted?
Laura Handman: In our view, what was novel, and so dangerous, about these lawsuits was the way they attempted to spin baseless defamation claims into the supposed framework of an organized, criminal enterprise involving multiple advocacy groups. Energy Transfer attempted to link Greenpeace and the other defendants to what it described as violent eco-terrorism, in order to strengthen the case for application of RICO.
Most courts, in light of clear Supreme Court precedent and the anti-SLAPP laws on the books in many states, are thankfully very careful to weed out defamation claims that are really just attempts to chill speech. But in this case the lawsuits had an extra layer of subterfuge, where the plaintiffs were trying to argue that supposedly false speech was the equivalent of mail and wire fraud because money was raised from donors, and thus could support a RICO claim—a threat to all nonprofits.
What were your key arguments in response?
Lance Koonce: Our approach was to expose these cases for what they were: SLAPP suits in disguise. North Dakota does not have an anti-SLAPP statute, which eliminated a key method for addressing these claims, but the principles we advanced under the First Amendment were the same.
We argued that Energy Transfer’s nearly 200-page complaint simply strung together many grievances Energy Transfer has against those who opposed the pipeline, but did not state a claim under RICO because it could not show any of the required elements, including a criminal “enterprise.”
How did your team work together and with co-counsel in litigating the cases?
Lance Koonce: We had significant help in the Energy Transfer case from our local counsel, Derrick Braaten. Other North Dakota counsel with whom we worked closely and cooperatively were Matthew J. Kelly of Tarlow & Stonecipher, who represented Greenpeace Fund, and Robin Martinez of Martinez Law Firm, who represented BankTrack, an activist organization focused on banks and the activities they finance. The Center for Constitutional Rights represented Earth First! Journal and EarthRights International and Center for Constitutional Rights represented Native American organizer Krystal Two Bulls.
Within our team, I took the RICO claims in the first instance, and Laura and Lisa addressed the defamation/First Amendment issues. But after the first draft stage, we worked very collaboratively with everyone weighing in on all issues, and with substantial input from our clients. The three of us were joined in the Resolute case by Thomas Burke in our San Francisco office, who is one of the country’s foremost experts on anti-SLAPP litigation.
You had back-to-back wins, first on Jan 22 in California and then on Feb. 14 in North Dakota. What did the courts hold?
Lisa Zycherman: In the California case, Judge Tigar dismissed—for the second time, and this time with prejudice—all of the RICO claims in that case and granted Greenpeace’s motion to strike under the California anti-SLAPP statute, which paved the way for us to seek substantial attorneys’ fees. All that’s left in that case is a defamation claim (and a related unfair competition claim) about two statements made by Greenpeace, out of the 296 statements that Resolute complained about. We feel confident that we will be successful in getting that claim dismissed as well.
In the North Dakota case, Judge Wilson dismissed the RICO claims with prejudice and declined to retain jurisdiction over the state law claims, including the defamation claims. He found, first, that Energy Transfer could not show an enterprise because, among other things, supporting other advocates through financial donations does not create an ongoing organization, and that “coordinating” with other parties does not create the requisite control or continuing unity necessary for RICO.
That’s very important for our client and for all advocacy organizations that wish to increase their impact by working collaboratively.
Laura Handman: We were especially pleased that even though he did not reach the state law defamation claims, Judge Wilson went out of his way to note that most of the supposed false statements by Greenpeace appeared to either be “subject to debate, matters of opinion, or inconsequential.” Energy Transfer has refiled those claims in North Dakota state court.
In both cases, we were very pleased that the judges used strong language in dismissing the RICO claims, indicating that these types of claims against advocacy groups, based on their speech, have no place in the courts. As Judge Tigar said, “The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind.”
What made these wins special?
Lance Koonce: These cases represent the worst kind of corporate bullying: Large corporations who do not want to defend their behavior in the public marketplace of ideas, but rather try to use their significant financial resources to intimidate advocates under the guise of law.
While these efforts will no doubt continue, winning one—or in this case two!—victories for non-profits trying to “speak truth to power” and prevent harm to our environment is incredibly gratifying.
Davis Wright Tremaine is practically synonymous with First Amendment litigation. In today’s climate of ‘fake news’ and assertions that the media is the enemy of the people, how has the firm’s practice changed? What do you see as your mission?
Laura Handman: This attitude has clearly impacted the legal climate in which our clients operate. As in the Greenpeace cases we’re discussing here, claims are being lodged not just to redress perceived wrongs, but to cripple and wipe out entire organizations. The president has even called for change in our libel laws and his call has now been echoed by Justice Thomas. So the stakes have become significantly higher for our clients as the plaintiffs challenging them have enlarged their ambitions.
Lisa Zycherman: This doesn’t just impact traditional media companies or outspoken activist groups either. Digital communication and crowd-sourced content have made these issues relevant to companies across multiple industries that host or publish content.
Laura Handman: To us, and clearly to the founders of our country, free speech and a free press are simply integral to a free and just society—and to the rule of law. It’s no accident that in societies where the law doesn’t matter the press doesn’t matter either. We see the role our media clients are playing as absolutely essential to a functioning democracy and it’s a great privilege and responsibility for us to defend that role with all the passion and resources we can muster.