Judge Fells Logger’s RICO Lawsuit Against Greenpeace

SAN FRANCISCO (CN) — A federal judge Monday dismissed without prejudice a lawsuit accusing Greenpeace of conspiring to defame a logging company as a “forest destroyer,” sparking some feisty comments from Greenpeace’s general counsel and what he called President Trump’s “go-to law firm.”

U.S. District Judge Jon Tigar found most of the alleged “false statements” Greenpeace and co-defendant Stand made about Georgia-based Resolute Forest Products were opinions on environmental issues, which are protected by the First Amendment.

“Many of defendants’ publications and statements — such as the publication entitled ‘Sending a resolute message to a forest destroyer #standforforests’ ‒ appear to be shielded by the First Amendment as statements that are not ‘provable as false,’ or statements that ‘cannot be reasonably be interpreted as stating actual facts,’” Tigar wrote in his 28-page order.

Resolute says the environmental groups spread lies about its logging in Canada’s boreal forest through social media and newsletters to paint it as the “bad guy” and to solicit donations.

In addition to defamation, Resolute accused the groups of wire fraud, mail fraud, extortion (for targeting Resolute’s customers, including Best Buy) and RICO conspiracy.

Tigar, however, found California’s Anti-SLAPP law protects people and entities from being sued for exercising their First Amendment rights. SLAPP stands for Strategic Lawsuits Against Public Participation.

“It’s exactly meant to apply when a large company is using legal systems to try and silence its critics,” Greenpeace attorney Laura Handman, of Davis Wright Tremaine, said of the Anti-SLAPP law in an interview. “This puts the burden on the plaintiffs to show they have a probability of success and awards attorneys’ fees if they fail to be able to do that.”

Resolute says the conservation groups falsely claimed that it cut trees in areas of Canada’s boreal forest where it was not logging, that its logging harmed endangered caribou, and that it exploited indigenous people and logged on their land without consent.

Both sides hired experts to support their positions on the environmental impact of Resolute’s logging in Canada.

Tigar found such matters of scientific debate are supposed to be settled by the scientific community, not the judiciary.

“The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind. As the Seventh Circuit has said, ‘scientific controversies must be settled by the methods of science rather than by the methods of litigation,’” Tigar wrote, citing the Seventh Circuit’s 1994 ruling in Underwager v. Salter.

Plaintiffs must meet a “demanding burden” to advance a defamation claim by pleading “actual malice,” Tigar wrote. Resolute failed to show that Greenpeace and Stand knew that certain statements were false when they were published, or published them with reckless disregard for the truth.
The judge rejected Resolute’s claims as “at most, ‘a formulaic recitation of the elements of a cause of action,’ which the Supreme Court has made clear ‘will not do,’” citing the 2007 Supreme Court ruling in Bell Atl. Corp. v. Twombly.

In addressing “the most specific allegation” — that Greenpeace published photos in 2012 with false location data to make it look like Resolute was logging in a part of the forest where it was not — Tigar found that Resolute failed to offer facts showing Greenpeace knew the photos were “faked, rather than mistaken.”

Because Greenpeace retracted the photos, acknowledging it had relied on “inaccurate maps,” Tigar found it reasonable to conclude that “Greenpeace made a mistake, not that it acted with malice.”

But he gave Resolute a second chance to amend its lawsuit, which the company said it will do.

“We will correct those purported deficiencies in an amendment, and proceed with the case,” Resolute attorney Michael Bowe, with Kasowitz Benson Torres in New York City, said in an email.

Also by email, Greenpeace USA general counsel Tom Wetterer called Resolute’s lawsuit, “a clear attempt to silence the voices that advocate for the environment.”

Wetterer said that Energy Transfer Partners, the oil company behind the Dakota Access Pipeline project, “followed a strikingly similar path” by filing a RICO complaint against Greenpeace in North Dakota Federal Court.

Both Energy Transfer and Resolute are represented by Kasowitz Benson Torres, which Wetterer described as President Donald Trump’s “go-to law firm.”

“These cases don’t seek justice,” Wetterer said. “They intend to silence free speech through expensive, time-consuming litigation. This pattern of harassment by corporate bullies led by Trump’s go-to attorneys must be stopped in its tracks.”

Responding to Wetterer’s statement, Bowe said in an email that this case is about more than free speech.

“It does not help the environment to make false claims against a good company and mislead the public about made-up environmental claims,” Bowe said.

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