July, 25 2018, 12:00am EDT
Court Dismisses Frivolous and "Dangerously Broad" Lawsuit Against NGO BankTrack for Opposing Dakota Access Pipeline
BISMARCK, N.D.
Yesterday, a federal judge issued a stinging dismissal of a lawsuit by developers of the Dakota Access Pipeline (DAPL) against BankTrack, a human rights and environmental NGO dedicated to ensuring that private banks engage in sustainable financing.
In 2017, Energy Transfer Partners (ETP) sued BankTrack for hundreds of millions of dollars.The lawsuit also named other environmental groups, including Greenpeace, in an effort to silence criticism of the pipeline's impacts on the land and water supplies of the Standing Rock Sioux. ETP argued that by organizing letters to banks financing the pipeline, BankTrack was involved in a criminal racketeering enterprise and claimed damages under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act.
BankTrack director Johan Frijns said:
"BankTrack raised legitimate human rights concerns arising from the Dakota Access Pipeline with the banks financing the project. The judge's decision confirms that this type of advocacy work is legitimate and is not 'reasonably or plausibly related' to any acts of criminal conduct. We hope the judge will now similarly dismiss the case against the other defendants, and that the ringing rejection of this case will discourage other corporations from launching these kinds of Strategic Lawsuits Against Public Participation."
EarthRights International (ERI) serves as consulting counsel for BankTrack in the lawsuit. Marco Simons, General Counsel of ERI, said:
"Corporations attempting to silence criticism of their conduct have started turning to the RICO statute, and Judge Wilson's decision is a strong rebuke to this tactic. The opinion makes clear that however much a company like Energy Transfer Partners dislikes public criticism of its projects, it cannot use RICO to argue that its critics are involved in organized crime. This is the right interpretation of the law, and it should shut down similar efforts against other advocates and nonprofits."
Federal judge Billy Roy Wilson ruled that ETP's interpretation of RICO was "dangerously broad," and that the law cannot be used to connect public criticism to remote criminal activities; using RICO in this way could "curtail almost any disagreeable, arguably protected speech."
The lawsuit is a classic example of a "Strategic Lawsuit Against Public Participation" or SLAPP. SLAPPs are a bullying tactic that is used to stifle free speech. Winning the lawsuit is not even necessary. If the company can keep the case in court long enough, it can drain the defendants' resources, time, and morale, forcing them to back down.
Judge Wilson's ruling sends a clear message to ETP's law firm, Kasowitz Benson Torres LLP. Kasowtiz, which has also long represented Donald Trump, has recently promoted the strategy of using the RICO statute to limit the free speech of civil society organizations. Judge Wilson made clear that Trump himself would be vulnerable to Kasowitz's strategy: "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."
The judge has not yet ruled on motions to dismiss by ETP's other targets, including Greenpeace. The Kasowitz law firm is also representing Canadian logging giant Resolute Forest Products on another RICO case against Greenpeace and Stand.earth.
Spokespeople for BankTrack and EarthRights International are available for comment.
Background
The judge's dismissal can be downloaded here.
More information about the case is available on ERI's website.
BankTrack's press release is available here.
EarthRights International (ERI) is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment, which we define as "earth rights." We specialize in fact-finding, legal actions against perpetrators of earth rights abuses, training grassroots and community leaders, and advocacy campaigns. Through these strategies, EarthRights International seeks to end earth rights abuses, to provide real solutions for real people, and to promote and protect human rights and the environment in the communities where we work.
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