Greenpeace, Inc. v. Dow Chem. Co.

• Decision Date: 09 September 2011
• Docket Number: Civil Action No. 10–2037 (RMC).
• Citation: 808 F.Supp.2d 262
• Parties: GREENPEACE, INC., Plaintiff, v. The DOW CHEMICAL COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

808 F.Supp.2d 262

GREENPEACE, INC., Plaintiff,

v.The DOW CHEMICAL COMPANY, et al., Defendants.

Civil Action No. 10–2037 (RMC).

United States District Court, District of Columbia.

Sept. 9, 2011.

Victoria S. Nugent, Emmy L. Levens, Kit A. Pierson, Robert Cacace, Jr., Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Plaintiff.

Michael J. Lyle, Steven A. Tyrrell, Weil, Gotshal & Manges, LLP, Matthew H. Kirtland, Richard C. Smith, Fulbright & Jaworski, L.L.P., Dana E. Hill, Thomas A. Clare, Kirkland & Ellis LLP, Tina M. Maiolo, Paul J. Maloney, Carr Maloney, P.C., Abid Riaz Qureshi, Gabriel K. Bell, John S. Cooper, Roger Steven Goldman, Latham & Watkins LLP, Washington, DC, David J. Lender, James W. Quinn, Jennifer M. Oliver, Weil, Gotshal & Manges, L.L.P., New York, NY, Brynja M. Booth, David R. Thompson, Roy B. Cowdrey, Jr., Cowdrey Thompson, P.C., Easton, MD, W. Scott Sonntag, Law Offices of W. Scott Sonntag, P.A., Greenbelt, MD, for Defendants.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Greenpeace, Inc. (“Greenpeace”) accuses targets of its environmental campaigns and others of civil racketeering in connection with alleged corporate espionage intended to interfere with those campaigns. However, Greenpeace's Complaint fails to establish a direct connection between the alleged federal criminal acts and any injury Greenpeace might have suffered. The racketeering counts will be dismissed for failure to state a claim. The Court declines to exercise supplemental jurisdiction over the remaining claims, which are all cognizable under state law. Accordingly, the Complaint will be dismissed.

I. Facts

Greenpeace brings its Complaint against The Dow Chemical Company (“Dow”), Sasol North America, Inc. (“Sasol”), Ketchum, Inc. (“Ketchum”), Dezenhall Resources, Ltd. (“Dezenhall”) (collectively the “Corporate Defendants”); and Timothy Ward, Jay Arthur Bly, Michael Mika, and George Ferris (collectively the “Individual Defendants”) for compensatory, statutory, and punitive damages.

Greenpeace is a nonprofit corporation headquartered in Washington, D.C. and incorporated under the laws of California. Founded in 1971, Greenpeace is one of the oldest and largest environmental organizations in the world. It campaigns to protect the oceans and ancient forests and to end toxic pollution, global warming, nuclear hazards, and genetic engineering. Compl. ¶ 7 [Dkt. # 1].

Dow sells chemical, plastic, and agricultural products and services. Id. ¶ 8. As relevant here, Sasol (then CONDEA Vista) ¹ made ethylene dicloride and vinyl chloride at a manufacturing facility in Lake Charles, Louisiana. Id. ¶ 9. Ketchum and Dezenhall (then Nichols–Dezenhall) ² are public relations firms that were hired by Dow and Sasol, respectively, to aid in securing information regarding environmental campaigns affecting the companies' businesses. Id. ¶¶ 58, 95. The Individual Defendants were all managers for Becket Brown International, Inc. (“BBI”), a now-defunct private security firm allegedly composed of former officers of the Secret Service and Central Intelligence Agency. Id. ¶¶ 12–15, 20. Greenpeace alleges that the Corporate Defendants hired BBI to obtain confidential information from Greenpeace through various unlawful means. Id. ¶ 21.

Greenpeace alleges that, between 1998 and 2000, all Defendants conspired to and did surveil, infiltrate, and steal confidential information from Greenpeace with the intention of preempting, blunting, or otherwise thwarting its environmental campaigns. It also alleges that BBI, Sasol, Dezenhall, and the Individual Defendants fraudulently infiltrated an environmental group that was an ally of Greenpeace, the Calcasieu League for Environmental Action Now (“CLEAN”), and used email to forward, i.e., “wire,” information about Greenpeace to BBI and, ultimately, Dezenhall and Sasol. Id. ¶¶ 33, 172(b).

During the relevant period, Greenpeace was involved in campaigns that targeted the practices or products of Sasol and Dow, specifically Sasol's vinyl chloride production, which allegedly emitted toxic chemicals into the Lake Charles region of Louisiana, and Dow's manufacturing activities, which create dioxin, as well as its products containing genetically modified organisms. Id. ¶ 18. In its efforts in Louisiana, Greenpeace was allied with CLEAN. Id. ¶ 33. In response to Greenpeace's campaigns, the Corporate Defendants retained BBI to gather and collect information regarding Greenpeace in surreptitious and allegedly illegal ways. The Complaint identifies two different conspiracies involving BBI and the Individual Defendants to secure confidential information from Greenpeace, the first involving Sasol and Dezenhall and the second involving Dow and Ketchum. Id. ¶ 55. Greenpeace became aware of these activities through a 2008 article in Mother Jones that used information made available by a former BBI principal to expose the Defendants' alleged illegal activities. Id. ¶¶ 24, 108.

According to the Complaint, BBI identified Greenpeace as a “target” and, in a 1998 memorandum, described its efforts to monitor “environmental activist groups,” ³ through which it was able to provide “insight into the scheduling of environmental protests and actions of the group, corporate targets, the tracking of maritime cargo by the group, and internal political issues of the group.” Id. ¶ 22. As part of its monitoring activity, BBI is alleged to have broken into Greenpeace's offices, stolen its confidential documents, and engaged in physical and electronic surveillance of Greenpeace and its ally organizations. The Corporate Defendants allegedly paid for these activities. Id. ¶ 50. For example, between October 1998 and July 1999, Dezenhall paid BBI approximately $150,000 to work on the “U Street Project,” which provided information to Sasol. Id. ¶¶ 52–53. The objective of this project was to gather information from Greenpeace “about the organization's campaigns against the manufacture and sale of plastics containing polyvinyl chloride; its donors and funding sources; its connections with the United States Attorney General and other regulators in federal government; and its political support.” Id. ¶ 52. In addition, it is alleged that Sasol paid BBI directly for the “Lake Charles Project,” through which BBI monitored environmental campaigns affecting Sasol's plant in Louisiana. Id. ¶ 64. Likewise, between October 1998 and January 2001, Ketchum paid BBI more than $125,000 to obtain confidential information from Greenpeace for Dow. Id. ¶ 95.

Defendants allegedly used various tactics in order to gain Greenpeace's confidential information. In particular, BBI allegedly obtained documents and records from dumpsters ⁴ and recycling bins at Greenpeace's offices and also acquired documents through false pretenses, a practice defined by Greenpeace as “D-lines.” ⁵ Id. ¶ 25. Each instance of purloining Greenpeace's internal, confidential documents allegedly “involved trespassing on private property and stealing documents where Greenpeace had a reasonable expectation of privacy.” Id. ¶ 27. Such incursions occurred “well over a hundred times over at least a two year period.” Id. (emphasis omitted). The Individual Defendants are alleged to have “personally directed and/or conducted [such activities] at Greenpeace's offices in Washington, D.C.” Id. ¶ 26. Defendants, directly and/or through their agents, moved documents stolen through these activities from the District of Columbia to Maryland.⁶ Id. ¶ 154.

The Individual Defendants and/or their agents are also alleged to have employed extensive physical surveillance, infiltration, and intrusion to obtain information from and about Greenpeace on behalf of the conspirators, such as: 1) sending a spy to pretend to apply for a position as a Greenpeace volunteer who used the opportunity to tour its premises and gather information; 2) hiring an individual to infiltrate Greenpeace's ally in Louisiana, CLEAN, who eventually became a CLEAN board member and used his position to forward confidential information to BBI; and 3) breaking into Greenpeace's U Street offices and obtaining highly confidential personnel, financial and employment records. Id. ¶¶ 33–35. The Complaint also states that Individual Defendants Bly, Mika, Ferris, and/or their agents engaged in unspecified amounts of electronic surveillance, including wiretapping and computer hacking on behalf of the conspirators. Id. ¶ 36. In addition, BBI allegedly obtained records of calls made to and from cell phones leased by Greenpeace for use in Louisiana. Id. ¶ 69. As a result of these activities, BBI is alleged to have obtained a variety of confidential, internal Greenpeace documents, including:

campaign planning documents; confidential donor letters and records of contributions; internal communications; confidential legal memoranda; privileged attorney-client communications; financial reports, balance sheets and budgets; passwords for private electronic mailing lists; Greenpeace credit card account numbers; and highly-sensitive personal information about Greenpeace employees such as Social Security Numbers, personal bank account statements and employment agreements.

Id. ¶ 46. Allegedly, the confidential information obtained by BBI was generally shared with Sasol and Dow through Dezenhall and Ketchum. Id. ¶ 53.

Greenpeace filed suit on November 29, 2010, after it was alerted of these activities through the 2008 Mother Jones article.⁷ Against all Defendants, it brings common law or state statutory claims for trespass, invasion of privacy by intrusion, conversion, trespass to chattel, and misappropriation of trade secrets under the District of Columbia Uniform Trade Secrets Act, D.C.Code § 36–401. It also brings federal claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) (conducting an enterprise through a pattern of racketeering activity) and § 1962(d) (conspiracy to violate RICO). The...