Resolute Forest Prods., Inc. v. Greenpeace Int'l

• Decision Date: 16 October 2017
• Docket Number: Case No. 17–cv–02824–JST
• Citation: 302 F.Supp.3d 1005
• Court: U.S. District Court — Northern District of California
• Parties: RESOLUTE FOREST PRODUCTS, INC., et al., Plaintiffs, v. GREENPEACE INTERNATIONAL, et al., Defendants.

302 F.Supp.3d 1005

RESOLUTE FOREST PRODUCTS, INC., et al., Plaintiffs,

v.GREENPEACE INTERNATIONAL, et al., Defendants.

Case No. 17–cv–02824–JST

United States District Court, N.D. California.

Signed October 16, 2017

David W. Fermino, Lyn Robyn Agre, Kasowitz Torres Benson, LLP, San Francisco, CA, Michael J. Bowe, Lauren Tabaksblat, Pro Hac Vice, Kasowitz Benson Torres LLP, New York, NY, James B. Ellington, Hull Barrett, PC, Augusta, GA, for Plaintiffs.

Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco, CA, Lance H. Koonce, III, Pro Hac Vice, Davis Wright Tremaine LLP, New York, NY, Laura R. Handman, Lisa Beth Zycherman, Pro Hac Vice, Davis Wright Tremaine LLP, Washington, DC, Thomas W. Tucker, Tucker, Long, PC, Augusta, GA, Karl Olson, Aaron Robert Field, Cannata, O'Toole, Fickes & Almazan LLP, San Francisco, CA, James S. Murray, Warlick, Stebbins, Murray, Chew LLP, Augusta, GA, Arthur W. Curley, Peter Frederick Finn, Bradley Curley Barrabee & Kowalski, P.C., Larkspur, CA, Aaron P.M. Tady, Shaun M. Daugherty, Thomas M. Barton, Coles Barton, LLP, Lawrenceville, GA, for Defendants.

ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO STRIKE, GRANTING DEFENDANTS' MOTIONS TO DISMISS

Re: ECF No. 55, 56, 60, 61, 62

JON S. TIGAR, United States District Judge

I. INTRODUCTION

Plaintiffs Resolute Forest Products, Inc., Resolute FP US. Inc., Resolute FP August, LLC, Fibrek General Partnership, Fibrek U.S., Inc., Fibrek International, Inc., and Resolute FP Canada, Inc. ("Resolute" or "Plaintiffs") filed this case alleging claims for violation of the federal RICO laws¹ as well as state law claims including racketeering, defamation, conspiracy, and tortious interference with prospective and contractual business relations. ECF No. 1 ("Complaint"). Defendants are the environmental groups Greenpeace and Stand, as well as their employees and officers. Id. Defendants now bring five separate motions to dismiss or strike, alleging that the conduct at the heart of Resolute's lawsuit consists of speech and other advocacy that is protected by the First Amendment.²

In one motion before the Court, Defendants Stand, formerly known as ForestEthics, and Todd Paglia ("Paglia"), the organization's Executive Director, move to dismiss Resolute's complaint in its entirety for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 55. In a second motion, Defendants Stand and Paglia move to strike Resolute's complaint under Georgia's statute concerning Strategic Lawsuits Against Public Participation ("anti-SLAPP"), O.C.G.A. § 9–11–11.1, arguing that the complaint interferes with their speech and conduct protected under the First Amendment. ECF No. 56. In a third motion, Defendants Greenpeace International, Greenpeace, Inc., Greenpeace Fund, Inc., and Greenpeace employees Daniel Brindis, Amy Moas, Matthew Daggett, and Rolf Skar ("All Greenpeace Defendants" or "Greenpeace") also move to strike Resolute's complaint under Georgia's anti-SLAPP statute, or, in the alternative, under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. ECF No. 60. Greenpeace Fund moves to dismiss Resolute's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. ECF No. 61. Finally, Defendants Greenpeace International, Greenpeace, Inc., Daniel Brindis, Amy Moas, Matthew Daggett, and Rolf Skar (the "Other Greenpeace Defendants") move to dismiss Resolute's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. ECF No. 62. The matters came for a hearing on October 10, 2017.

This court GRANTS Defendants' three motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure to all claims. The Court also GRANTS both motions to strike as to all state claims.

II. BACKGROUND

A. Factual Background

Plaintiff Resolute is a multi-entity company in the forest products industry, which harvests trees, and mills wood to create paper and generate products, among other activities. Complaint ¶ 24. Resolute Forest Products, Inc. is the parent company of the remaining Resolute plaintiffs. Id. Defendant Greenpeace includes related Dutch and American non-profit organizations, operating in many states including in California, where it is also organized, which advocate for environmental protections. Complaint ¶ 31–33. Defendant Greenpeace Fund raises and donates money to the Other Greenpeace Defendants. Complaint ¶ 33. Defendant Stand is a non-profit organized in California, which advocates for environmental protections. Complaint ¶ 34. Defendant Paglia is the Executive Director of Stand. Complaint ¶ 35. The remaining individual defendants are officers and employees of the Greenpeace Defendants. Complaint ¶ 36.

Resolute alleges that, beginning around 2012, and continuing through the present, Greenpeace targeted the company with a number of media campaigns designed to reduce the forestry company's profits through false or misleading statements about the company's impacts on the environment and on indigenous communities. Complaint ¶¶ 5–19. According to Resolute, Greenpeace also spread false information in order to "fraudulently induce donations" to "pay its leaders and continue raising more funds." Complaint ¶¶ 44, 53.

Specifically, Resolute claims that in 2012, Greenpeace published a false report accusing the company of logging in an area of Canada's Boreal forest protected by an environmental agreement, the Canadian Boreal Forest Agreement ("CBFA"). Complaint ¶ 73. According to Resolute, Greenpeace later admitted that it had "incorrectly stated that Resolute had breached the [CBFA]." Complaint ¶ 78. Greenpeace then began a campaign referring to Resolute Forest Products as "Resolute Forest Destroyer," in which it fabricated "phony photographic evidence" and misrepresented the location of Resolute's logging. Complaint ¶ 81. According to Resolute, the term "forest destroyer" is false because the company harvests only a small portion of the Boreal forest. Complaint ¶ 89, 103. Resolute accuses Greenpeace of "bad faith" because the organization once reported that a logging moratorium to which Resolute was a party protected woodland caribou habitat, but then later described Resolute's logging activities within that area—which Resolute characterizes as "miniscule"—as "endangering" the caribou. Complaint ¶ 109. Additionally, Resolute accuses Greenpeace of falsely criticizing the forestry company's relationship with indigenous communities, when in fact the company employs community members, notwithstanding lay-offs "result[ing from] economic and market realities." Complaint ¶¶ 115–17, 122. Finally, Resolute claims that Greenpeace committed additional bad acts when volunteers placed banners on a Montreal landmark claiming injustice by Resolute, and when supporters presented Resolute with a "guardian tree" containing 61,000 signatures asking Resolute to protect the forest. Complaint ¶ 194. In sum, Resolute alleges that Greenpeace publishes "whopping lie[s] ... misrepresenting Resolute's harvesting as a major climate change risk." Complaint ¶¶ 86, 100.³

Much of the complaint is devoted to Resolute's criticism of Defendants' choice of tactics. For example, Resolute criticizes Greenpeace's strategy of using "sensational headlines," as Greenpeace leaders have admitted to "emotionalizing issues" to increase pressure. Complaint ¶¶ 51–53. Resolute also claims harm from Greenpeace's use of particular words, such as "ancient," "old," and "endangered," to describe the forest it seeks to protect. Complaint ¶ 89. Resolute claims that Greenpeace's tactics show that the organization does not "actually care about ... real environmental protection," has no "genuine interest" in protecting the forest, and that "science and truth are not important to Greenpeace." Complaint ¶¶ 56, 60, 63, 83. Relatedly, Resolute claims it was harmed by Greenpeace's omission of certain favorable facts about Resolute in its campaigns, such as the fact that Resolute impacts only a very small percentage of the caribou population in the forests in which it operates, and that Resolute follows some forestry management standards. Complaint ¶¶ 11, 92.

Resolute claims that Greenpeace, Inc., Greenpeace International, Greenpeace Fund, Stand and Paglia closely coordinated the above described "disinformation campaign and broader attacks." Complaint ¶ 46. Resolute alleges that the Defendants agreed to coordinate this campaign, and carried it out as a racketeering scheme and a "criminal enterprise." Complaint ¶¶ 42–44.⁴ Beyond explaining that the Defendants operated together, Resolute does not identify specific acts of racketeering by specific defendants in its complaint and instead refers to the Defendants collectively as the "Greenpeace Enterprise." See e.g., Complaint ¶ 107.

Resolute claims that as a result of the Defendants' coordinated publications and associated activism, a number of the company's corporate customers in Europe and the United States, such as 3M and Best Buy, withdrew their business from Resolute, causing the company up to $100 million CND in economic harm. Complaint ¶¶ 155, 166–67. Accordingly to Resolute, the Defendants also caused independent auditors such as Rainforest Alliance and Forest Stewardship Council to issue bad reviews of the company. Complaint ¶¶ 86–88. Resolute accordingly claims damages to its reputation and goodwill. Complaint ¶¶ 213–16. Finally, Resolute seeks an injunction against "wrongful activity and disgorgement." Complaint ¶ 319.

B. Procedural History

Resolute filed the complaint in this action on May 31, 2016 in the Southern District of Georgia. ECF No. 1. The complaint includes eleven causes of action:

(1) Racketeering in violation of 18 U.S.C. § 1962(c), on the basis of predicate acts including mail fraud, wire fraud, extortion, illegal interference with commerce, and illegal monetary transactions, in the form of transmitting false reports...