https://theintercept.com/2022/12/16/corporate-rico-environmental-advocate/The Scorched-Earth Legal Strategy Corporations Are Using to Silence Their Critics
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Weeks before he was murdered, Victor Hugo Orcasita presented his wife with a letter describing his last wishes.
Orcasita, a union leader, had been pushing for better conditions at his workplace, a mine in northern Colombia owned by a subsidiary of the Alabama-based coal company Drummond. Then the death threats started coming in. He believed that the armed strangers who had started appearing around the mine’s cafeteria would soon make those threats a reality.
“He foresaw his death,” said his widow, Elisa Almarales Viloria.
On March 12, 2001, paramilitary gunmen dragged Orcasita and another union leader, Valmore Locarno, from a company bus as the men returned home from work. The gunmen shot Locarno on the spot and carried Orcasita off in the bed of their pickup truck. His body was found the next day. He’d been shot in the head, his teeth knocked out.
The miners’ union was convinced that Drummond was involved in the murders. They suspected that the company was secretly paying the paramilitary group that executed their leaders. Ultimately, a Drummond food service contractor who ran the mine’s cafeteria was convicted of plotting the murders and sentenced to 38 years in prison.
To make the case that the company was complicit in the killings, the union turned to Terry Collingsworth, a lifelong human rights attorney based in Washington, D.C.
Victims suing multinational corporations for alleged crimes committed abroad face steep odds. Collingsworth has made a specialty of these uphill battles, devoting his career to holding companies accountable in American courts for human rights abuses overseas. In his struggle with Drummond, he collaborated with activist groups, spoke out in the media, and wrote letters to Drummond’s business partners accusing the company of “hiring, contracting with, and directing” the paramilitaries who committed the murders.
Collingsworth’s decision to file suit in the United States made Orcasita’s widow hopeful that justice would prevail. For years, she had felt that justice would be impossible in Colombia due to Drummond’s political clout.
“What we were most excited about was bringing the lawsuit in Alabama,” she said. “There it would not be so easy for them to traffic their influence.”
Collingsworth lost an initial trial in 2007, when a jury found there wasn’t clear evidence tying the company to the crimes. Another of his lawsuits was dismissed for being too similar to the first. But Collingsworth continued to press his case, offering new witnesses with firsthand testimony implicating Drummond.
Then, in March 2015, the case took a surprising turn.
Drummond had returned fire in the legal fight with an unusual accusation. The company charged that Collingsworth — an advocate who recently brought a case before the U.S. Supreme Court — had led a “multifaceted criminal campaign” to extort Drummond into paying a costly settlement. This campaign, Drummond alleged, was in fact a racketeering conspiracy as defined by the Racketeer Influenced and Corrupt Organizations Act, better known as RICO.
Drummond’s charges represent a scorched-earth legal strategy in which corporations are turning the tables on attorneys and advocates who accuse them of wrongdoing. The technique was popularized by the elite corporate law firm Gibson, Dunn & Crutcher, whose clients include a who’s who of America’s most powerful companies. Representing the oil giant Chevron, Gibson Dunn convinced a judge to block one of the largest environmental verdicts ever reached by deploying a novel formula: using the civil provisions of RICO to charge opposing attorneys with racketeering.
Companies that have used RICO against their accusers say they brought the charges on themselves by committing fraud, bribery, and extortion. In Chevron’s case against environmental attorney Steven Donziger, a federal judge agreed; in the case against Collingsworth, a judge ruled that there was enough evidence of malfeasance to allow discovery. Human rights and environmental advocates contend that the true purpose of the cases is to send attorneys and activists a message: Going toe-to-toe with heavyweight corporations can lead to personal ruin.
“Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it.”
Legal experts say some plaintiff’s attorneys made themselves vulnerable to RICO claims because they operated at the most aggressive edge of their field, overstepped ethical lines, and by their own admission made mistakes. By shifting the spotlight to these attorneys’ conduct, corporations effectively sidestepped the original allegations against them. Following these victories, other companies adopted similar theories to target advocacy groups directly.
If the goal is to hold attorneys accountable for unethical behavior, RICO is an odd choice. George Washington University law professor and international human rights attorney Ralph Steinhardt noted that RICO is a “very heavy club to swing” when there are more direct penalties, like sanctions, which punish the advocate without invalidating the entire case.
“One wonders why you would bring out the big guns of racketeering to send a message,” he said. “It’s a take-no-prisoners approach that’s intended to distract from whatever good faith allegations there may be.”
Ken White, a former federal prosecutor who specializes in First Amendment law, said responding to alleged misconduct by opposing attorneys with RICO charges is “like going after raccoons knocking over your trash cans with a tactical nuke.”
What’s missing, White says, is a universal mechanism to secure quick dismissals of baseless RICO claims. “Companies with functionally limitless resources can come in and bigfoot like this, and no one can withstand it,” White said.
Climate activists are gathered outside Gibson Dunn office to protest against the Chevron Corp, New York City, June 10, 2021.
Climate activists gather outside the Gibson Dunn office in New York City to protest against Chevron on June 10, 2021.
Photo: Tayfun Coskun/Getty Images
The RICO Playbook
As scientists issue dire warnings about climate change, advocates have turned to the courts and public campaigning to try to impose consequences on companies they accuse of serious attacks on the environment. Energy and extractive industry giants targeted by these efforts have been particularly eager to turn the tables by deploying this no-holds-barred strategy.
One of the world’s biggest oil companies, accused of dumping billions of gallons of toxic waste in the Amazon rainforest, won the first high-profile victory that relied on this approach. Drummond filed RICO charges in response to allegations that it financed the murder of union leaders who threatened the productivity of its coal mines. A pulp and paper company accused of destroying forests and the energy company behind the Dakota Access pipeline followed soon after, bringing RICO claims against environmental campaigners and anti-pipeline protesters.
In each of these cases, the accused racketeers were environmental and human rights attorneys, Greenpeace and other environmental groups, or Indigenous land and water rights activists.
The RICO Act, originally passed in 1970 to help prosecutors go after the mafia, includes civil provisions that allow private parties to allege a racketeering conspiracy. Most civil RICO claims are filed in business disputes, while others have been brought against political groups from anti-abortion protesters to animal rights activists. These suits require a high bar of evidence: They must prove a pattern of at least two “predicate” crimes such as bribery, fraud, or money laundering; that the perpetrators worked together in a criminal “enterprise”; and that the perpetrators acted with criminal intent.
Nonetheless, RICO claims offer powerful incentives to plaintiffs. If a judge allows the case to go forward, the defendants are subject to extensive discovery in which a well-funded corporate law firm can bury them in paperwork. If the company wins and can establish damages, those damages are automatically tripled.
“When we really think about what these suits are about, it’s fear.”
The success of early cases has helped build a body of law that opens the door for even more aggressive uses of the statute. The most recent corporate RICO cases have sought to define common public advocacy techniques such as negative media campaigns that allegedly contained false claims as predicate offenses for racketeering. The financial and reputational costs of defending these claims can make them devastating to their targets even if they ultimately fail.
“These RICO cases are easier to file than they are to win,” Steinhardt said. “Their intimidating purpose is served by their filing or their pendency.”
Deepa Padmanabha, deputy general counsel for Greenpeace USA, said that even though her team was awarded more than $800,000 in legal fees after successfully defeating RICO claims, the cost of defending the case was even higher.
Padmanabha said that two RICO suits would have cost the organization a total of more than a billion dollars if it had lost. The goal of the charges, she believes, was to caution the environmental movement that even the largest organizations were not safe from ruin.
“When we really think about what these suits are about, it’s fear,” Padmanabha said.
Corporate lawyers seem to be betting that the strategy will have staying power. In October 2020, Gibson Dunn announced a new practice in Judgment and Arbitral Award Enforcement, offering its services to creditors or debtors seeking to litigate existing judgments. The practice’s website highlights “its representation of Chevron Corporation in its successful RICO suit” and boasts that the firm “excels at defending companies and individuals against fraudulent arbitration awards and foreign judgments.”
Evan Mascagni, policy director for the Public Participation Project, an organization that fights against abusive lawsuits, said the RICO strategy threatens to overwhelm the legal system by allowing deep-pocketed companies to deploy endless resources to silence critics and defy judgments against them.
“I think if we accept this as a society, as a country, we’re saying we’re going to give incredibly powerful multinational corporations the ability to hijack our legal system,” Mascagni said.
The lawyer of Ecuadorean people affected by Texaco-Chevron, Steven Donziger, speaks during a press conference on March 19, 2014 in Quito.
Steven Donziger speaks during a press conference on March 19, 2014, in Quito, Ecuador.
Photo: Rodrigo Buendia/AFP via Getty Images
A Victory for Chevron
The RICO strategy was most famously deployed in 2011 by Chevron in its bitter legal conflict with attorney Steven Donziger.
At the time, Donziger was the lead lawyer pursuing massive damages against the oil company for toxic pollution in the Ecuadorian Amazon. Chevron inherited the lawsuit when it acquired Texaco, which had allegedly left hundreds of open pits of sludge in the rainforests where it operated, causing cancer deaths, miscarriages, and birth defects among the area’s mostly Indigenous residents. As the prospects of a multibillion-dollar judgment grew higher, Chevron enlisted the help of Gibson Dunn.
In February 2011, Gibson Dunn attorneys filed a civil RICO suit in New York accusing Donziger and his colleagues of running a racketeering conspiracy. They charged that Donziger and his team secretly controlled a key independent expert appointed by the Ecuadorian court to assess pollution damages. By the time of Donziger’s trial, they added the accusation that Donziger had bribed an Ecuadorian judge to allow his team to ghostwrite the judgment against Chevron.
Chevron provided hundreds of thousands of dollars in benefits to Alberto Guerra, the witness who claimed he’d facilitated the bribery and served as a liaison between Donziger’s team and the Ecuadorian judge. The benefits included relocating Guerra and his family from Ecuador to the United States, where the company supplied him with a $12,000 monthly salary. Chevron has said that it relocated Guerra to ensure his safety and that the payments were to compensate him for the cost of providing his evidence.
The company’s case was bolstered by Donziger’s own words, obtained through discovery of materials that included outtakes from a documentary film. In one clip, Donziger discussed the size of a possible judgment against Chevron and speculated that his team could “jack this thing up to $30 billion.” In draft testimony in 2013, Donziger conceded that he “did make errors along the way” but challenged the legitimacy of the proceedings against him.
As the RICO case headed for trial, Chevron made a strategic move. Roughly two weeks before the trial date, it dropped its request for damages and sought only to block enforcement of Ecuador’s $9.5 billion judgment. That meant the case would no longer be heard by a jury but decided solely by Judge Lewis Kaplan, a federal district judge in Manhattan who had ruled in the company’s favor in earlier motions.
In March 2014, Kaplan ruled in favor of Chevron, barring U.S. enforcement of the Ecuadorian judgment and holding that private parties are entitled to seek relief from foreign courts’ decisions under civil RICO — a crucial green light for the strategy that Gibson Dunn had developed.
Kaplan concluded that Donziger’s team had not only secretly written the Ecuadorian court’s ruling, but also submitted false evidence and made hidden payments to the court-appointed expert. “The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law,” Kaplan wrote in his opinion.
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Critics have raised questions about irregularities in the case against Donziger. Guerra later changed key details in his testimony, including the nature of the alleged bribe agreement and the dates of trips in which he claimed to have worked on the case. Computer analysis also showed the judge in question had a running draft of the judgment saved on his hard drive for months, undermining the ghostwriting claim. Still, the case set in motion a stunning downfall for Donziger. The one-time star of the environmental bar ended up serving time in federal prison on contempt charges stemming from his refusal to comply with orders from Kaplan after the RICO decision. Meanwhile, Chevron avoided paying the multibillion-dollar judgment for the toxic sludge that remains in the Ecuadorian Amazon.
In an emailed statement, Gibson Dunn noted that an arbitration panel established through a trade agreement between the United States and Ecuador found that Texaco, Chevron’s predecessor, had complied with a pollution remediation plan approved by the Ecuadorian government, releasing the company from liability. Critics contend that the remediation plan failed to clean up the damage and did not cover claims by private plaintiffs.
In response to questions about Guerra, the firm said Donziger exaggerated the importance of his testimony and pointed to Kaplan’s statement that he would have “reached precisely the same result in this case even without the testimony of Alberto Guerra.” Gibson Dunn added that Kaplan’s RICO ruling, which was unanimously affirmed by a panel of judges on the 2nd U.S. Circuit Court of Appeals, showed that the firm’s advocacy had uncovered serious wrongdoing.
“As for Gibson Dunn’s work successfully exposing fraud by unscrupulous lawyers like Mr. Donziger who seek to rip off vulnerable people in weak legal systems overseas based on lies, this is laudable work vindicating the rule of law,” William Thomson, a partner at Gibson Dunn who was part of its Chevron team, wrote in the statement.
Donziger maintained that his contacts with the Ecuadorian expert were legal and appropriate under Ecuadorian law, and that the ghostwriting charges were fabricated.
“Chevron used a civil racketeering case and false witness testimony from a person who is an admitted liar to try to criminalize me,” Donziger told The Intercept and Type in a written statement. “They wanted to use this bogus RICO case to try to get people to forget about the human devastation Chevron caused in Ecuador.”
Undated photo of a open air coal mine in La Guajira province, Colombia.
An open-air coal mine in Colombia’s La Guajira Department.
Photo: Jeffrey Tanenhaus
Witnesses in Dispute
About a year after Kaplan blocked the Ecuadorian judgment against Chevron, Drummond filed RICO charges against Collingsworth.
Although the company had already prevailed against several of his lawsuits, Collingsworth forged ahead with new legal actions, adding witnesses who offered firsthand testimony alleging that the coal company was complicit in the union leaders’ murders.
One of these witnesses was an imprisoned former paramilitary commander called El Tigre, or the Tiger, who testified that Drummond provided regular payments to his unit. Another key witness was Jaime Blanco, the food contractor who was ultimately convicted of the murders, who said Drummond used his company as a conduit to funnel money to the paramilitaries and directed them to commit the murders.
Collingsworth made payments to El Tigre’s family members and helped arrange financing for Blanco’s legal defense when he agreed to testify. He said the funds he provided to El Tigre’s family were security payments to help the family relocate in order to avoid violent retaliation by the paramilitaries, Autodefensas Unidas de Colombia, which the U.S. State Department designated as a terrorist group in 2001. In response to a court order, Collingsworth disclosed similar payments to relatives of three ex-paramilitary witnesses, but he failed to include the payments to El Tigre and two other ex-paramilitaries, as well as his arrangement with Blanco.
Drummond’s media office did not respond to multiple phone calls and emails requesting comment for this story, and attorneys for Drummond declined to comment.
Colombian authorities have backed up key elements of Collingsworth and El Tigre’s account. In December 2020, the Colombian Attorney General’s Office charged the current and former presidents of Drummond’s Colombian subsidiary with conspiracy in the union leaders’ murders. The 149-page charging document included a summary of a forensic analysis that found evidence of more than $3.7 million in overpayments from the subsidiary to Blanco’s company, bolstering allegations that Drummond had financed the paramilitaries.
Prosecutors also noted that numerous witnesses who did not receive security payments had testified to the same facts. The accounts of El Tigre and other disputed witnesses, they wrote, were “in harmony with and verified by other forms of proof.”
This fall, prosecutors named Drummond’s Colombian subsidiary as a “civilly responsible third party” in the case of the union leaders’ murders.
Though its Colombian subsidiary is now in the crosshairs of prosecutors, Drummond has had more success against Collingsworth in the United States.
In 2015, Drummond filed a civil RICO suit charging that Collingsworth had bribed El Tigre, Blanco, and other witnesses to falsely testify that Drummond was involved in the murders, as part of a racketeering conspiracy to strong-arm the coal producer into paying a hefty settlement. The company pointed to inconsistencies in their testimonies, noting previous statements in which they denied that Drummond had worked with the paramilitaries before they became witnesses for Collingsworth.
The case, which focused on the undisclosed payments to witnesses, was heard by a federal judge who had ruled in Drummond’s favor in earlier litigation with Collingsworth, Judge R. David Proctor of the Northern District of Alabama.
Collingsworth said in court filings that the omissions were an “inadvertent disclosure error” resulting from miscommunication with his co-counsel in Colombia. He said he had failed to include the payments in an initial disclosure and then recycled his answer repeatedly before realizing his error. He also apologized to the judge for making a “terrible mistake” in not revealing his arrangement with Blanco, which he had previously deemed to be outside the scope of required disclosures.
“Sitting here now, boy, I wish I had just disclosed it,” Collingsworth said in a phone interview. “Because it wasn’t hiding the truth or changing the testimony.”
The real question, Collingsworth said, is whether the payments to the witnesses in Colombia were ethical and necessary for their safety. The security arrangements were needed for them to testify truthfully without endangering their families, he said, noting that he reviewed all arrangements in advance with ethics lawyers and turned down witnesses who sought to exchange testimony for cash. He fiercely defends his decision to help relocate the families of former paramilitaries and submitted testimony supporting the need for security payments by expert witnesses including Javier Peña, the former Drug Enforcement Administration agent who led the mission that killed cartel leader Pablo Escobar and inspired the Netflix series “Narcos.”
“It was morally necessary to protect these families from one of the most brutal groups that roamed the earth,” Collingsworth said.
In December 2015, Proctor ruled that Drummond’s RICO case could go forward, finding that Collingsworth’s explanation for the undisclosed payments was “as weak as it is incredible.” He held that there was probable cause to believe that Collingsworth had bribed witnesses and suborned perjury, opening the door to the extensive discovery process that Chevron had effectively used against Donziger.
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It was the beginning of years of legal wrangling that Collingsworth said drained the resources of his small human rights firm.
Collingsworth said he has spent some 2,000 hours — what a lawyer usually bills in a year — defending against Drummond’s charges. Even more damaging, he said, has been the impact on his professional reputation, which he says has deprived him of business opportunities and revenue.
“I have had colleagues who are in law firms tell me that they can’t collaborate with me until these charges are completely resolved in my favor, because they don’t want to be accused of associating with someone who bribes witnesses,” Collingsworth said.
Steinhardt, the human rights law professor, said the facts of the case aren’t black and white, but the charges against Collingsworth are disproportionate. “He isn’t a racketeer,” Steinhardt said.
A protester holds a poster during a demonstration outside the Constitutional Court, called by the Union of Persons Affected by Texaco, to mark the 23 years of legal battle against the oil company, in Quito, Ecuador, Wednesday, Nov. 9, 2016.
A protester holds a poster outside the constitutional court in Quito, Ecuador, on Nov. 9, 2016, at a demonstration marking 23 of the legal battle over Texaco’s pollution.
Photo: Dolores Ochoa/AP
A Chilling Effect
The success of these cases paved the way for increasingly aggressive uses of civil RICO.
Around 2012, Greenpeace and other environmental groups launched a protest campaign against Resolute Forest Products, accusing the forestry company of destroying boreal forests in Canada. Several years later, Greenpeace and others began another campaign targeting Energy Transfer Partners (now part of Energy Transfer LP), the company behind the Dakota Access pipeline. This campaign charged, among other things, that the company was threatening Indigenous communities’ water supply and sacred sites. Greenpeace and its allies rallied their members, drove media coverage, and urged the companies’ business partners to sever ties unless the companies changed course.
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The two companies filed RICO charges against Greenpeace and the other groups in 2016 and 2017. Both were represented by the firm Kasowitz Benson Torres, whose founding partner Marc Kasowitz was a longtime personal attorney for Donald Trump and filed a defamation case against one of Trump’s critics. (First Look Institute, the nonprofit that publishes The Intercept, is involved in litigation with Energy Transfer, represented by the Kasowitz firm, over records related to the Dakota Access pipeline.)
Michael Bowe, the former Kasowitz partner who brought the RICO cases, told Bloomberg in August 2017 that he was in contact with other companies considering similar actions and “would be shocked if there are not many more.” He anticipates an increase in these actions, he wrote in response to questions from Type and The Intercept, because “the online nature of activism and speech generally makes it easier and more common to widely disseminate false claims and inflict great harm.”
“The claims against Greenpeace and others are … essentially saying, ‘Your activism is racketeering.’”
The cases against Greenpeace took the RICO strategy well beyond the arguments made by Chevron and Drummond. They argued that common advocacy techniques such as naming-and-shaming campaigns and fundraising amounted to RICO offenses if the campaigns included false allegations. Greenpeace’s campaign against Resolute included an inaccurate claim that Resolute had logged in protected forests, which Greenpeace later retracted, saying it had made a mistake. Resolute accused Greenpeace of intentionally fabricating the claim in order to extort the company, calling the organization a “global fraud” that existed to maximize donations rather than protect the environment.
“The claims against Donziger aren’t claims against environmentalism as it operates,” said Joshua Galperin, an environmental law professor at Pace Law School. “But the claims against Greenpeace and others are much more broad, essentially saying, ‘Your activism is racketeering.’”
Bowe disputed this characterization. “The case is not about activism, it is about lies,” he wrote. “Legitimate activism is truthful.”
Krystal Two Bulls, an organizer who participated in the Standing Rock protests against the Dakota Access pipeline, was added as a defendant in the racketeering suit brought by Energy Transfer in 2018, after a judge found that the initial complaint was too vague to support RICO claims. The company charged that Two Bulls, a media liaison for a group of protesters called Red Warrior Camp, had sought to “provide cover for their illegal activities” by issuing public calls to action on the group’s behalf. They accused Red Warrior Camp of being a “front for eco-terrorists” who engaged in violent attacks on construction sites. News reports state that while members of the camp occupied private land to block pipeline construction, police and security guards carried out much of the violence — using water hoses, rubber bullets, and tear gas against protesters.
Two Bulls, a U.S. Army veteran and a member of the Oglala Lakota and Northern Cheyenne, was shocked when she learned she had been charged with racketeering.
“I remember thinking, what am I supposed to do with this?” she said. “I have no lawyer. I have no money for a lawyer.”
“I started to censor myself.”
Two Bulls was represented pro bono by the nonprofit law firms Center for Constitutional Rights and EarthRights International. She considers herself lucky that colleagues in the environmental movement connected her with these lawyers but recalls a heavy weight on her shoulders while the charges were pending. She felt like her presence was a liability to her fellow activists.
“It made me second guess myself and the spaces I entered,” Two Bulls said. “I started to censor myself in the things I was saying.”
Laura Lee Prather, a partner at Haynes Boone who specializes in First Amendment law, said civil RICO claims often lead to extended litigation because they depend heavily on the facts of the case. Defamation charges can be thrown out if the defendant can affirmatively show their statements were true. By contrast, a civil RICO claim usually requires a more complex defense.
“Civil RICO is much more difficult to have a court feel comfortable dismissing at any early stage,” Prather said.
Federal judges in California and North Dakota dismissed the RICO claims in both cases almost a year and a half after they were filed. In the Resolute case, the judge ruled that the company failed to prove that Greenpeace’s fundraising claims had directly caused the alleged harm it suffered. He later ordered the company to pay more than $800,000 of Greenpeace’s legal costs.
Resolute noted that other charges it has brought against Greenpeace, alleging defamation and unfair competition, were allowed to proceed and are still before the courts. “The long-running dispute with activists has been about standing up for our communities to defend our sustainable practices against misrepresentation,” Resolute spokesperson Seth Kursman said in a statement.
In the case of Energy Transfer, the judge ruled that the company failed to prove that the various actors involved in the Standing Rock protests were a coordinated “RICO enterprise.”
“While there is a common purpose among defendants — they all oppose the Dakota Access Pipeline — there is no ongoing organization, no continuing unit, and no ascertainable structure apart from the alleged RICO violations,” U.S. District Judge Billy Roy Wilson wrote in February 2019. “That is far short of what is needed to establish a RICO enterprise.”
Energy Transfer did not respond to email or telephone inquiries. A week after its RICO charges were dismissed, the company filed charges in North Dakota state court, accusing Greenpeace, Two Bulls, and others of trespass, defamation, and civil conspiracy for their role in the Standing Rock protests. The litigation is ongoing.
Defiant Dakota Access Pipeline water protectors faced-off with various law enforcement agencies on the day the camp was slated to be raided, on Feb. 22, 2017, North Dakota.
Dakota Access pipeline protesters face off with various law enforcement agencies on Feb. 22, 2017, in North Dakota.
Photo: Michael Nigro/Pacific Press/LightRocket via Getty Images
Protecting the Protest
The RICO attacks on Greenpeace and its allies alarmed civil society organizations, which feared that the cases would deter advocacy groups from speaking out against big corporations. In 2018, a coalition of organizations founded Protect the Protest to combat lawsuits meant to silence free speech, which are known as strategic lawsuits against public participation, or SLAPPs. These lawsuits can include RICO claims but have also proliferated in other ways. Telltale signs of a SLAPP, according to the coalition, are claims that target activities protected by the First Amendment, seek to exploit a power imbalance, and threaten to bankrupt defendants.
“Civil society is not just going to lay down and take this,” said Marco Simons, the general counsel for EarthRights International and a member of the coalition.
Simons believes the coalition’s recent work calling attention to the Greenpeace lawsuits has, for the time being, discouraged companies from attempting more RICO suits that broadly target activism. But Protect the Protest is still seeking more permanent solutions.
The coalition aims to crack down on these suits by promoting anti-SLAPP laws, which provide fast-track procedures for dismissing SLAPPs and shifting their legal costs to the party that filed them. More than half of U.S. states have some version of an anti-SLAPP law.
Ken White, the former prosecutor, said that state anti-SLAPP laws have been highly effective, both in deterring abusive lawsuits and providing a defense mechanism for their targets. But RICO is a federal law.
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In September, Rep. Jamie Raskin, D-Md., introduced the SLAPP Protection Act of 2022, a federal bill that, like the state laws, would provide an expedited process for getting SLAPPs thrown out. Raskin singled out the fossil fuel industry for abusing the “legal system by deploying costly, protracted, and meritless lawsuits to target activists.”
A law providing a uniform standard for dismissing such lawsuits across federal courts would make it “much harder to abuse the system,” White said.
As advocates search for solutions, Drummond is pressing ahead with its RICO case against Collingsworth. The company subpoenaed VICE Media last year for raw audio recordings from a podcast about the union leaders’ murders. On March 7, Proctor, the judge, ruled in Drummond’s favor, ordering VICE to turn over recordings of its interviews with Collingsworth, Blanco, and another witness.
Collingsworth said that he doesn’t fear losing in court, but the looming racketeering charges have taken a toll psychologically.
“There is a question mark over my name.”
“It has caused me emotional turmoil because some people view me differently,” he said. “There is a question mark over my name.”
The coming months are expected to bring new developments in his legal battle with the coal company. Attorneys will take depositions from witnesses in Colombia for Drummond’s RICO suit and a more recent suit brought by Collingsworth. Meanwhile, Colombian prosecutors have resumed work in their case against the current and former presidents of Drummond’s Colombian subsidiary, seeking testimony from a former paramilitary leader in October. The defendants have appealed the decision to charge them with conspiring in Orcasita’s and Locarno’s murders, and the appeal must be decided before the case can go to trial, according to Ivan Otero, Collingsworth’s co-counsel in Colombia.
More than 21 years after her husband’s murder, Elisa Orcasita is still skeptical of Colombian justice but is hoping for a clean trial.
“We pray to God that there’s no more buying of anything, no more influence of anything,” she said. “That’s what we hope for as victims.”
This story was produced with support from the Fund for Constitutional Government and the H.D. Lloyd Fund for Investigative Journalism.
