Canadian Logging Giant Attempts to Silence Critics Using Anti-Mafia Law
Todd Paglia, Executive Director of Stand.Earth, discusses a $300 million lawsuit brought against his environmental organization and Greenpeace by Resolute Forest Products under the US Racketeer Influenced and Corrupt Practices Act
D. LASCARIS: This is Dimitri Lascaris for The Real News. Montreal-based Resolute Forest Products, Canada’s largest logging company, has commenced a highly controversial 300 million dollar lawsuit against two leading environmental organizations, Greenpeace and Stand Earth. The lawsuit has been brought under a US federal statute, the Racketeer Influenced and Corrupt Organization’s Act, or RICO. As its name suggests, RICO was enacted in Congress by 1970, with the primary purpose of strengthening criminal and civil penalties against those engaged in organized crime. Among other things, RICO entitles a successful plaintiff to award of triple damages, or three times the amount of damages that the successful plaintiff has actually sustained. Thus, the consequences for defendants who are found liable under RICO can be devastating. Precisely because the consequences can be devastating, those who are sued under RICO have no alternative but to expend prodigious resources in the defense of the RICO suit.
When the plaintiff is a wealthy corporation like Resolute Forest Products, and the defendants are not-for-profit environmental organizations, the mere cost of defending the lawsuit can be crippling. A fact of which a company like Resolute Forest Products is undoubtedly aware. RICO requires the plaintiff to show, among other things, that the defendants were engaged in a criminal enterprise. What does Resolute allege the defendants’ criminal enterprise to be, in this case? Publicly criticizing the Montreal-based forestry giant’s logging practices in Canada’s Boreal Forest.
Now here to discuss this RICO suit with us is Todd Paglia, executive director of Stand Earth. Todd has helped to transform the paper policies of multi billion dollar Fortune 500 companies. He was chosen as one of Ethisphere Magazine’s 100 most influential people in business ethics. Before joining Stand Earth, Todd was an attorney for Ralph Nader, focusing on consumer protection issues. I should point out that Todd himself has been named as a defendant in Resolute’s RICO lawsuit. He joins us today from Bellingham, Washington. Thanks very much for joining us, Todd.
TODD PAGLIA: Thanks, Dimitri. Glad to be here.
D. LASCARIS: I’d like to start, Todd, by discussing the nature of the criticisms that Stand Earth and Greenpeace have articulated against Resolute Forest Products. What precisely are the practices that the two organizations have criticized?
TODD PAGLIA: Nothing out of the ordinary and nothing that you can’t see if you actually tour some of the areas where Resolute operates. We’re talking about very large clear cuts. The type of logging that makes it very difficult, if not impossible, for caribou and other wildlife to survive. The criticisms that we have leveled against them are pretty typical of what environmentalists all over the world say about giant logging operations, which makes the lawsuit all the more quixotic and surprising.
D. LASCARIS: It is the case however, I believe, that Greenpeace in 2013, felt obliged to apologize for some of the accusations it had leveled against Resolute. What happened there?
TODD PAGLIA: My understanding, more as a bystander. I wasn’t a part of that. Greenpeace has produced quite a few different reports on the effects that Resolute is having on the forest and on other issues. In one of the reports, there were a couple of mistakes on GPS location and characterizing what was happening on the land. In Greenpeace, like a lot of advocacy groups, it was quick to recognize its mistake and retracted it and apologized. Resolute was satisfied with that until some months later it decided to bring a lawsuit anyway.
In the normal course of business, mistakes will be made. I think the important part is to correct them, retract them, and get the right information out there. Greenpeace did all that. Despite it, Resolute saw an opportunity to bring a massive lawsuit against them.
D. LASCARIS: Am I correct in understanding that Stand Earth itself has not withdrawn any of the criticisms it has articulated against Resolute?
TODD PAGLIA: Not in the least. In fact, we’ve redoubled them. Resolute’s hope, with this lawsuit, I firmly believe, is not to win. Legally they face a very uphill battle. I think their hope is to out-spend us. To give you a sense of scale and why we consider this to be a serious bully activity, I’ve compared Richard Garneau, the CEO, to being the Trump of Canada for this very reason. To give you an example, the company in 2015 had more revenue in the first eight hours on January 1 than Stand.Earth had for the entire year. The financial wherewithal is quite skewed. They’re hoping to just spend us into the ground. That’s the strategy as far as I can tell.
D. LASCARIS: Since we’re on the subject of strategy, I notice that the company brought its RICO suit in, of all places, the United States’ federal district court in Georgia. [inaudible 00:05:27] used to pursue its action there? Where is the lawsuit likely to be adjudicated at the end of the day, in your view?
TODD PAGLIA: Well, yeah that was quite interesting. It’s about the hardest place we could get to. Very expensive. Labor intensive. Time intensive for us to get there. In fact, I have never been to the southern district of Georgia. They were very strategic in trying to pick this location. They also picked it because they have a mill and there’s a lot of sympathy towards paper and pulp and lumber mills in the southern district of Georgia. That entire strategy, though, backfired in a major way last week. The judge in the southern district of Georgia couldn’t figure out why or earth Resolute thought it could bring a lawsuit there, where many of us, including me, have never been. He removed the case to the northern district of California, meaning San Francisco.
D. LASCARIS: Right. Those decisions, I know as lawyers, are discretionary. Therefore, getting them reversed on appeal is a considerable challenge.
TODD PAGLIA: I think there’s almost no way that can happen here. I think Resolute tried to overthink this and find the most difficult, most expensive venue possible for us, with friendly jurors, and hopefully a friendly judge. And they got bounced out of there. Now they’re welcome to San Francisco. Slightly different jury pool. Different judges. Greenpeace and Stand.Earth have offices in San Francisco, so it’s much easier for us to wage this battle from there.
D. LASCARIS: Now, you and the other defendants have brought a motion to dismiss this controversial RICO suit. In your motion, you describe the suit as a slap suit under Georgia law. What is a slap suit and what are the primary arguments the defendants make in support of the slap suit? One other thing, what would the consequences be for Resolute if the court accepted that this was a slap suit?
TODD PAGLIA: A slap lawsuit is a strategic lawsuit against public participation. It’s a tried and true method of giant companies trying to silence their critics. It is usually a trumped up series of charges, meant to cost an awful lot of money for the non-profit to defend against, even if it’s meritless. Slap statutes, however, cut these things short. It allows the judge, in this case the judge in San Francisco, to look at whether or not there are actual merits in the case that are likely to succeed and if not, to end this case very early. We think, even in the southern district of Georgia, our motion to dismiss was very strong. Georgia recently adopted an anti-slap legislation. California is the leading jurisdiction on anti-slap suit legislation. We are feeling like we’re in a very good position.
What’s at stake here, though, is really big, and much, much larger than Greenpeace and Stand. What Resolute is doing is they’re not just bringing this lawsuit and using RICO to try to silence us, they are advocating this as an approach for other industries. They are saying to other industries, “Follow us.” If you look online, they’ve had Steve Forbes write about this. They’ve had the Financial Post write about this and other conservative outlets. They’re saying, “This is a way to silence those pesky NGOs and people who criticize us, so we can keep business as usual.” So there’s much more at stake than just me being sued personally, my organization and Greenpeace. That’s why we’re fighting this as hard as possible.
D. LASCARIS: Precisely because of the stakes, I understand that a number of organizations have filed briefs as friends of the court in support of the motion to dismiss. Who are those organizations and what are they arguing?
TODD PAGLIA: There’s a number of very big persuasive NGOs have submitted. I think most interestingly, unsolicited by us, a group of reporters organizations and news outlets filed an Amicus brief saying that this distortion of trying to use RICO to essentially attack the first amendment cannot stand. The interesting thing about that is they’re, of course, arguing very hardcore first amendment protections that are well established in US law. Resolute is trying to find an end run around the first amendment. I think they’re not going to find it, but the interesting thing is many of the news outlets that so value the first amendment and that have come to our defense, in fact, might be buying pulp or paper from Resolute. That’s something that we are beginning to communicate to them about. They’re going to be, I think, forced to make a decision between favoring either their values or pulp produced by a company attacking the first amendment.
I think for book publishers, for newspapers and magazines, there’s going to be a bit of a reckoning on whether they’re going to live their values or leave them by the wayside and continue to do business with Resolute.
D. LASCARIS: This is undoubtedly a piece of litigation which is going to have very considerable implications for the environmental movement and for free speech. We’ll certainly follow the story, Todd. We thank you for joining us today.
TODD PAGLIA: Thank you, Dimitri.
D. LASCARIS: This is Dimitri Lascaris for The Real News.