Resolute Forest Products has initiated multi-million dollar lawsuits and is seeking to have their environmental critics found to be a criminal enterprise. Find out what’s at stake for the environment and free speech...
Following a series of revelations on its unsustainable forestry activities, Canada’s largest logging company Resolute Forests Products (TSX: RFP) took legal actions in Canada and the United States against several individuals and environmental groups.
Greenpeace Canada protest at Montreal’s Mount Royal Cross, 2013
© Dan Mathieu 2013
On May 23, 2013 Resolute filed a $7 million (CAD) lawsuit for defamation and economic interference in the Ontario Superior Court against Greenpeace Canada and two of its staff members. This was the first legal effort by Resolute to try to silence the longstanding Greenpeace campaign to protect the Canadian Boreal forest, which includes calling out companies to stop their unsustainable logging practices.
In striking out parts of Resolute's defamation pleadings, a panel of appellate judges with the Ontario Superior Court ruled that Resolute had attempted to "greatly expand the scope of the litigation and transform the trial into an inquiry into Greenpeace''
On May 31, 2016 Resolute filed a $300 million dollar (CAD) lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO) in the United States District Court for Southern Georgia, against Greenpeace International and U.S. Greenpeace entities, as well as Stand.earth (formerly ForestEthics), and five individual staff members of these organizations. RICO was originally conceived of to prosecute the mafia, and, in allowing plaintiffs to recover treble damages, provides a uniquely powerful means to intimidate advocacy groups into silence.
The claims by Resolute in this second lawsuit include defamation and alleged violations of U.S. anti-racketeering laws, calling Greenpeace a “global fraud” and claiming “soliciting money, not saving the environment, is Greenpeace’s primary objective.”
Greenpeace considers these lawsuits to be meritless and obvious SLAPP (strategic lawsuit against public participation) tactics intended to silence Greenpeace and other critics of Resolute’s logging practices in the Canadian forest.
Over 100 independent non-profit and media organizations have spoken out against Resolute’s RICO lawsuit and the threat it poses to free speech. Greenpeace, Stand.earth and other advocacy groups have the right to free speech and serve a vital role in speaking out on matters that are of public interest and concern. That is the bottom line in both of these cases.
For decades, Greenpeace Canada has worked in close collaboration with First Nations, governments, corporations and unions in Canada to deliver a sustainable forest products industry, healthy local communities, and science based conservation.
We will not be silenced.
Why is Resolute suing Greenpeace and Stand.earth?
Greenpeace, and Stand.earth has been campaigning for greater protections for the Boreal forest for many years. Over time, Greenpeace Canada has documented many shortcomings in Resolute Forest Products claims of sustainability in its Canadian operations, including:
- - Failing to ensure the long term health of high conservation value forests
- - Logging in critical caribou habitat in Ontario and Quebec
- - Operating without the consent of some First Nations in their traditional territories
- - Labeling paper as “eco-conscious” when it has no recycled content
Greenpeace is calling on Resolute to address these issues and undertake science-based conservation, respect First Nations’ rights and support local communities. While our campaigns have led some groups to reform their practices
, Resolute has responded by suing its critics – including, in one case, its own auditor
Are Resolute’s accusations against Greenpeace true?
The allegations made by Resolute against Greenpeace Canada, US Greenpeace entities, and Greenpeace International are absolutely false and without merit. As SLAPP lawsuits, their intention is not to advance meritorious claims but to censor Greenpeace’s criticism of Resolute’s forest practices.
As with other advocacy groups, one of Greenpeace’s roles in civil society is often to act as a watchdog that holds corporations and governments accountable for the social or environmental consequences of their actions. It is this function that Resolute’s lawsuits aim to shut down. These cases are not only about Resolute, therefore, but also about protecting the ability of all advocacy groups to operate in the public interest without fear of legal action.
What is a SLAPP suit? Do the Resolute lawsuits fit the criteria for SLAPP suits?
A strategic lawsuit against public participation (SLAPP) is a lawsuit filed as a means of shutting down speech and scrutiny on matters of public interest. Such lawsuits have been restricted in many jurisdictions under anti-SLAPP legislation on the grounds that they impede freedom of speech. Despite this they are increasingly, and with alarming frequency, being used by companies as a means of silencing their critics.
SLAPP lawsuits tend to be baseless but their purpose is generally not to win on the merits: rather, they intend to “win” by exhausting time and money through the litigation process, intimidating critics (particularly those named individually as defendants), and forcing those critics to abandon their criticism. Against these criteria, the Resolute lawsuits are textbook SLAPP suits: they are excessively long, contain numerous counts, and target individual staff members (as well as the organizations themselves) for exercising their right to speak out on issues of great public concern.
Resolute’s lawyers in the United States are certainly well qualified to lead efforts to shut down critical speech. One of their better-known clients is Donald Trump, on behalf of whom they sent a threatening letter to the New York Times in a transparent attempt to silence his sexual abuse accusers. The response by the NYT’s in-house counsel has since gone viral.
Why is a company with its headquarters in Canada suing Greenpeace in the US?
Resolute Forest Products is suing US Greenpeace entities, Greenpeace International and Stand.earth using a racketeering law (namely the Racketeering Influenced and Corrupt Organizations Act, or RICO) available only in the US and intended for criminal enterprises. Through RICO, the company is asking for higher financial penalties (treble damages and attorney fees) and trying to discourage Greenpeace and our allies from campaigning globally on this issue.
That a company headquartered in Canada is suing Greenpeace in the US reflects the nature of this lawsuit as a SLAPP (see above): the intention is not so much about winning the lawsuit, but rather to intimidate us and other advocacy groups into silence, and RICO – with its criminal connotations and treble damages - provides a powerful means with which to try to do that.
What are others saying about these lawsuits?
Over 100 independent non-profit and media organizations have spoken out against Resolute’s RICO lawsuit and the “dangerous precedent” it could set.
On 15 September 2016 the Sierra Club submitted an Amicus Curiae brief in the US RICO case, along with eight other environmental organizations, in which it described how “the conduct being labeled as racketeering crimes consists entirely of nonviolent, non-commercial speech about topics of public interest” and that allowing the claim would “endanger the ability of non-profits to operate and set a dangerous precedent.”
The organizations argue that “permitting the RICO statute to be used as a club to silence legitimate speech and expression is contrary to long-established protections afforded public interest advocacy.”
Reporters Committee for Freedom of the Press and eleven media organizations signed onto a second Amicus brief [LINK] supporting Greenpeace’s motion to dismiss, which states: “This case is about the exercise of fundamental speech rights. Protecting Greenpeace’s freedom of expression… will ensure that speakers, including members of the news media, can exercise their constitutional rights without fear of unjustified reprisals.”
“In this case, a corporation engaged in controversial activities of great public interest attempts to stifle the speech of an organization that has criticized and questioned its environmental record. Although framed as several different causes of action, the claims share a central purpose – silencing speech on matters of public concern.”
In November, 80 organizations signed onto an advertisement in the New York Times, including Friends of the Earth, 350.org, and the David Suzuki Foundation, which condemns Resolute’s RICO lawsuit.
/i>“Attempting to persuade U.S. courts to label environmental advocacy as a criminal enterprise sets a dangerous precedent. It not only undermines efforts to protect the Boreal forest… it also threatens the basic right to free speech guaranteed by the First Amendment.”
In a recent court ruling for the Canadian lawsuit, a panel of judges with the Ontario Superior Court ruled: “Resolute alleges... that Greenpeace has a strategy of distorting the truth and ‘sensationalizing’ the evidence in order to appeal to its donor base. There is not a single example pleaded of the defendant Greenpeace doing such a thing. As an allegation of past bad conduct, this is a pleading of presumptively inadmissible similar fact evidence. As an allegation of malice, it is so devoid of particularity as to be scandalous and vexatious.”
How has Stand.earth responded to Resolute's lawsuit against them?
Stand.earth has vowed that "No amount of intimidation tactics or bullying is going to make us stop telling the truth about Resolute or any other company that destroys forests."
Find out more on Stand.earth’s website here and here, and in their blog in the Huffington Post.
What is Greenpeace asking for?
Greenpeace is asking Resolute, and all companies operating in the Boreal forest, to operate in a way that respects the free, prior and informed consent (FPIC) of First Nations, recognizes Indigenous governance authority, commits to conservation outcomes consistent with the best available science and Indigenous knowledge, recovers the FSC certifications that have been withdrawn or suspended -- including the protection of Intact Forest Landscapes -- and brings an end to Resolute’s lawsuits.
Documents filed by Resolute:
- Resolute Complaint (May 31, 2016)
- Appendix to Resolute Complaint (May 31, 2016)
- Resolute Response in Opposition to Motion to Stay Discovery (August 15, 2016)
- Resolute Opposition Memorandum on Motion to Dismiss (Nov 22, 2016)
- Resolute Motion to Lift the Stay of Discovery (Dec 16, 2016)
- Resolute Memorandum in Support of Motion to Lift Stay of Discovery (Dec 16, 2016)
- Resolute Reply Brief in Support of Motion to Lift Stay of Discovery (Jan 5, 2017)
Documents filed by Greenpeace:
- Greenpeace Motion to Stay Discovery (July 29, 2016)
- Greenpeace Reply Memorandum in Support of Motion to Stay Discovery (Sept 1, 2016)
- Greenpeace Motion to Dismiss (all plaintiffs but GP Fund) (Sept 8, 2016)
- Greenpeace Fund Brief in Support of Motion to Dismiss (Sept 8, 2016)
- Greenpeace Anti-SLAPP Motion (Sept 8, 2016)
- Greenpeace Opposition to Resolute Motion to Lift Stay of Discovery (Dec 29, 2016)
- Greenpeace Fund Opposition to Resolute Motion to Lift Stay of Discovery (Dec 29, 2016)
- Greenpeace Fund Reply in Support of Motion to Dismiss and Motion to Strike (Jan 23, 2017)
- Greenpeace Reply in Support of Motion to Dismiss and Motion to Strike (Jan 23, 2017)
- Greenpeace Request for Oral Argument on Motion to Strike (Jan 23, 2017)
Documents filed by Stand.earth
- Stand.earth Motion to Dismiss (Sept 8, 2016)
- Stand.earth Motion to Strike under Anti-SLAPP (Sept 8, 2016)
- Stand.earth Opposition to Resolute Motion to Lift Stay of Discovery (Dec 22, 2016)
- Stand.earth Reply in Support of Motion to Dismiss (Jan 20, 2017)
- Stand.earth Reply in Support of Motion to Strike (Jan 20, 2017)
Documents filed by third-parties:
- Amicus Brief by Other Advocacy Groups (Sept 15, 2016)
- Amicus Brief by Reporters Committee for Freedom of the Press (Sept 15, 2016)
- Frederick Cubbage Affidavit in Support of Resolute Response (Nov 22, 2016)
- Peter Reich Affidavit in Support of Resolute Response (Nov 22, 2016)
- Lisa Zycherman Affadavit in Support of Greenpeace Motion to Strike (Jan 23, 2017)
- Keith Moore Affadavit in Support of Greenpeace Motion to Strike (Jan 23, 2017)
- Jay R. Malcolm Affadavit in Support of Greenpeace Motion to Strike (Jan 23, 2017)
- Daniel Kneeshaw Affidavit in Support of Greenpeace Motion to Strike (Jan 23, 2017)
- Order for Temporary Stay of Discovery (Aug 17, 2016)
- Order for Stay of Discovery (Sept 22, 2016)
- Order to Deny Motion to Lift Stay of Discovery (Jan 17, 2017)
- Resolute Statement of Claim (May 23, 2013)
- Greenpeace Statement of Defence (Aug 20, 2014)
- Recent Court Motions (Aug 26, 2016)
Fortunately, the fight-back against SLAPPs has begun. A diverse coalition of groups and individuals opposed to SLAPPs – from the Media Alliance to the Taxpayers Protection Alliance, to TripAdvisor and Yelp – have joined forces to press for a federal US anti-SLAPP law. This Public Participation Project is a great place to start for more information on the SLAPP phenomenon in the US.
In Canada, the Canadian Civil Liberties Association and Pro Bono Law Ontario formed their own Public Participation Project to provide resources and support to assist defendants in SLAPP suits and encourage anti-SLAPP legislation. Their website provides information on SLAPPs in Canada, including examples of Canadian SLAPPs and helpful material for those being SLAPPed.
For further information on SLAPPs and the campaigns to fight them:
For background on both Resolute lawsuits and the Greenpeace campaign that provoked them, see the NRDC’s overview here.
Kate Redford of EarthRights International discusses SLAPP lawsuits, including Resolute’s RICO case against Greenpeace and Stand.earth, as part of a broader corporate movement to silence environmentalists in this Huffington Post blog.
The Reporters Committee for Freedom of the Press (RCFP) give more information on the need for a federal anti-SLAPP statute on their website
For background on the Canadian defamation case and more details about its SLAPP nature see this article by the Watershed Sentinel.
For more information on the US RICO case see this article by Celia Wexler, the award-winning journalist and nonfiction author.
The following experts can be contacted for more information on the free speech implications of SLAPP lawsuits such as Resolute’s:
Peter Jacobsen: Leading practitioner in defamation law and Chair of the Canadian Issues Committee, Canadian Journalists for Free Expression.
Cara Faith Zwibel: Director of the Fundamental Freedoms program at the Canadian Civil Liberties Association. (Currently on maternity leave, please also contact Rob DeLuca)
Professor David Ardia: Professor of Law at UNC School of Law and Board Member of the Online Media Association.
Evan Mascagni: Policy Director of the Public Participation Project.
Bruce Brown: Executive Director at the Reporters Committee for Freedom of the Press (RCFP)
To be put in touch with any of these experts, please contact Reykia Fick at .
Does RICO Case Against Greenpeace “Mobsters” Threaten Free Speech? (The Ontario Herald, Dec 14): http://www.theontarioherald.com/featured/does-rico-case-against-greenpeace-mobsters-threaten-free-speech/
Lawsuit Treats Greenpeace and its Allies Like Mobsters: Activists and Journalists Fear Legal Tactic Will Threaten Free Speech (Who What Why, Dec 13): http://whowhatwhy.org/2016/12/13/lawsuit-treats-greenpeace-allies-like-mobsters/
Résolu accusée de brimer la liberté d'expression dans le New York Times (Les Affaires, Nov 22): http://www.lesaffaires.com/secteurs-d-activite/ressources-naturelles/resolu-accusee-de-brimer-la-liberte-d-expression-dans-le-new-yor-times/591822
Liberté d’expression: 80 organisations nord-américaines dénoncent Résolu (Mauvaise Herbe, Nov 21): http://www.mauvaiseherbe.ca/2016/11/21/liberte-dexpression-80-organisations-nord-americaines-denoncent-resolu/
U.S. Marketplace Urged to Protect Canada’s Boreal Forest (NRDC, Nov 2): https://www.nrdc.org/experts/anthony-swift/us-marketplace-urged-protect-canadas-boreal-forest
The New Corporate Playbook, Or What To Do When Environmentalists Stand In Your Way (The Huffington Post, May 29): http://www.huffingtonpost.com/katie-redford/the-new-corporate-playboo_b_10599544.html
Resolute responds to Greenpeace campaigns by labelling us a “criminal enterprise”. Other corporations respond by…