Lawsuit Against Olympia Food Co-op Declared Illegal Lawsuit Against Public Participation

Judge: Lawsuit Violates Washington Free Speech Protections

February 27, 2012 – Olympia, WA – In a landmark ruling, Judge Thomas McPhee has declared a lawsuit against the Olympia Food Coop illegal under Washington State law and awarded legal fees and sanctions to the defendants. Lawyers for the Olympia Food Co-op argued in court that a lawsuit brought against the store for its participation in a boycott of Israeli goods should be dismissed as illegal under Washington’s anti-SLAPP legislation.

Washington law forbids SLAPP (Strategic Lawsuits Against Public Participation), which target the right of free speech by forcing defendants into costly legal battles. Despite ultimately being found meritless, these suits make the exercise of constitutionally protected speech costly and difficult. “This ruling has huge implications for justice,” says Rochelle Gause, a board member and defendant in the lawsuit, adding “with growing awareness around this issue, the bullying and intimidation employed by those who defend Israeli Human Rights abuses at all costs is becoming less and less viable. Hopefully this judgment will open up the door for more businesses and organizations to heed the call and join this movement for human dignity.”

We are pleased the Court found this case to be what it is – an attempt to chill free speech on a matter of public concern. This sends a message to those trying to silence support of Palestinian human rights to think twice before they bring a lawsuit,” said Maria LaHood, a senior staff attorney with the Center for Constitutional Rights.

Plaintiffs in the lawsuit, including several failed candidates for the board of directors, wrote that the coming suit was intended to hamper the Co-op’s ability to participate in the boycott of Israeli goods. The letter, dated May 31, 2011, states in part that “we will bring legal action against you,” and that the execution of the boycott would become “complicated, burdensome, and expensive.” In response, the board of directors reiterated that the proper process for overturning a boycott is a “member-initiated ballot”, and that the opponents of the boycott could put it to a vote of the membership, and Judge McPhee noted that the plaintiffs offered no evidence that they exhausted all manner of challenging boycott.

The opponents of this boycott have had every opportunity to rescind the boycott using the fair and democratic process laid out in the Co-op bylaws,” says Johan Genberg, a longtime co-op member, adding “[The plaintiffs] wanted to punish the store for speaking out for social justice, but isn’t that exactly what makes the Olympia Food Co-op unique? The store reflects the values of this community.”

Farihan Bushnaq, a Co-op member since 1983 adds “as a Palestinian refugee and a member of the Olympia Co-op I wholeheartedly support the boycott, as a way to save Israel from its own excesses, and to end the continued dehumanization of the Palestinian people under Israeli control.”

The Olympia Food Co-op, formed in 1976, is a nonprofit corporation with a mission to “contribute to the health and well-being of people by providing wholesome foods and other goods and services” and to “encourage economic and social justice”. The Co-op has participated in many national and local boycotts, including those against Norway for whaling practices and Colorado for anti-gay legislation. In 2010, the Board of Directors reached a consensus decision to remove Israeli products. The boycott urges Israel to comply with international law, end its occupation of Palestinians, and respect the rights of refugees. Members of the co-op suggested the boycott in response to the 2005 call for Boycott, Divestment and Sanctions (BDS) by a broad coalition of over 180 Palestinian civil society organizations.

The Co-op’s decision to boycott Israeli products, the first of its kind in the nation, sparked several months of constructive discussion on the store’s relationship to social justice. The subsequent election for the Co-op Board demonstrated widespread support for the boycott among the membership when the five publicly pro-boycott candidates won by a large margin in a record turnout election.

Under anti-SLAPP legislation, defendants will be eligible to recoup attorney’s fees and penalties.

The case is Davis, et al., v. Cox, et al., Case No. 11-2-01925-7 in the Superior Court of the State of Washington in Thurston County.

Organizers are available to speak with the press.

» Read the press release from the Center for Constitutional Rights / Olympia Food Co-op…

» More information on the Center for Constitutional Rights’ case page…

» More information on the Olympia BDS website…

» Read more from the Olympia Food Co-op…

 

(originally published at http://www.olympiabds.org/2012/lawsuit-against-olympia-food-co-op-declar...)

Comments

There's additional coverage

The Olympian has a story, and there's a shorter AP story with a couple of additional details on the Seattle Post-Intelligencer's website.

I'm not a lawyer, but at first glance, I think maybe these stories are a little off about the penalties for plaintiffs when a suit is  dismissed under the State's anti-SLAPP law, as this was. The articles both say "each defendant in the lawsuit is potentially entitled to an 'anti-SLAPP penalty' of $10,000". What the statute says is:

     (6)(a) The court shall award to a moving party who prevails, in part or in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law:

     (i) Costs of litigation and any reasonable attorneys' fees incurred in connection with each motion on which the moving party prevailed;

     (ii) An amount of ten thousand dollars, not including the costs of litigation and attorney fees; and

     (iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated. (RCW 4.2.4.525)

That "shall" doesn't seem to me to allow a lot of discretion to the judge once he's decided to dismiss the suit. Since sixteen current and former Co-op Board members were being sued, if the stories are right in saying that each defendant is entitled to this penalty, it's a lot of money.

The plaintiff's lawyer says he will appeal...

 

Best wishes,
Thad

 

Interesting point, Thad

You are the first person I've heard from to make that observation. 

It's really an altogether very interesting case.  The link provided above by Johan to the Center for Consitutional Rights case page is worth checking out.  One can gain considerable insight into the Co-op process for making decisions about boycotts in general, and this one in particular, just by reading the "Declarations" of H. Levine and J. Kaszinsky.

Great catch, Thad!

...

Great catch, Thad!

Add to that the fact that one of the Co-op’s attorneys helped write the anti-SLAPP law.

I’m still amazed that such a seasoned and distinguished attorney as Bob Sulkin would take on a case that was so obviously a SLAPP—and then try to justify it by saying that anti-SLAPP laws are “unconstitutional.”

This is despite my knowing that he likely took the case for ideological reasons, as I’ve reported. Still, SLAPP penalties could put his reputation and that of his law firm at risk, all so that he could sue the Co-op.

There are such ridiculous lies in the legal briefs that were filed. Weird stories were made up by the plaintiffs in their sworn declarations, which they proclaim as “personal knowledge.” If this had come to light, they could have been cited for perjury.

Now the other attorney, Avi Lipman, I’m not so surprised about. He’s still a young attorney and is new to Sulkin’s law firm, so he needs to do what his superior says. Sulkin, on the other hand, doesn’t have a convenient excuse.

Did they even bother to warn the plaintiffs that a SLAPP motion might happen?

There are rumors that the attorneys pursued this lawsuit pro bono. I’m not so sure about that. Regardless, if they were (and are) planning to go all the way with the lawsuit, there are still significant costs involved.

The question remains: who is footing the bill here?

Is it the pro-Israel group StandWithUs, who referred to the lawsuit as one of its “projects,” and who seems to have brought Sulkin (and consequently Lipman) into the case?

Is it possibly the Israeli government, whose deputy foreign minister admitted to using StandWithUs “to amplify our power,” in relation to this lawsuit, and whose Northwest consul general met with StandWithUs, Lipman, and the plaintiffs on March 10 last year to discuss suing the Co-op?

Whoever it is, I’m confident that the plaintiffs will not be the ones paying the fines and defendants’ legal fees.

"Who's behind the Olympia Food Co-op lawsuit?" by Phan Nguyen

Phan's exposé, published at Mondoweiss (which he linked above), is a  fascinating read.

"MLK and the peace process," by Phan Nguyen

In another excellent article at Mondoweiss, Phan describes how "Martin Luther King rejected offers of peace in the South as a negative, obnoxious peace that papered over blacks' legitimate struggle for rights"* and compares that to the "negative peace" persued by groups like  StandWithUs, for whom "the expression of peace is reduced to a rhetorical weapon."

*Quote from Facebook preface.

"Excerpts from the Co-op lawsuit dismissal," by Phan Nguyen

In a piece published today at Mondoweiss, Phan excerpted some of Judge McPhee’s key findings and broke them down into seven key components (along with Phan’s own reliably illuminating commentary and one bonus observation):

1. The Co-op’s boycott constitutes free speech in connection with an issue of public concern, namely the Palestine/Israel conflict.

2. The boycott was enacted lawfully according to Co-op bylaws.

3. BDS is a nationally recognized movement.

4. The boycott was considered by the Co-op board only after other avenues in the formal process were exhausted.

5. The anti-SLAPP statute is constitutional.

6. Case dismissed, plaintiffs to be fined.

7. A recommendation to settle the dispute with a vote.

Also: a report on the plaintiffs’ refusal to bring the matter to a vote.

The official transcript of the February 27 hearing is available as a PDF at Mondoweiss and at the Center for Constitutional Rights case page for the Co-op lawsuit.

"Are they now prepared to respect the outcome?"

In this piece Phan concludes:

"And finally, in light of the judge’s rulings, we should revisit this statement, also from the plaintiffs’ May 31 letter:

Should new proposals to enact such policies be pursued at a later date in accordance with OFC rules and regulations, we would be prepared to respect the outcome of that process.

"Thus comes the key question: Since the court, which the plaintiffs sought for arbitration, has determined that the boycott was indeed passed 'in accordance with OFC rules and regulations,' are they now 'prepared to respect' the outcome?

"I think we already know the answer."

Just for the record

Judge McFee didn't quite say this, at least not as I understand his decision. He said that in order to not have their suit dismissed at this point under the anti-SLAPP law, the plaintiffs had to "prove by clear and convincing evidence a probability of prevailing on the claim."

He said that some of the evidence they offered to support their claim that the minutes about the adoption of the policy showed that decisions about whether or not to honor a boycott were supposed to be completely in the hands of the staff was not legally admissible "under the rules of evidence in case law." He held that those legal standards for evidence excluded two declarations by plaintiffs who had been on the Board when the policy was adopted about how they remembered thinking it was supposed to work - as "expressions of their subjective intent at the time the policy was adopted" eighteen years ago. He also held that those standards excluded their declarations about how the Board as a whole thought it was supposed to work - as hearsay. The objective legal evidence he found admissible was the actual language in the minutes and the actual language in the bylaws.

In particular, he looked at a sentence on which the plaintiffs relied, in the formal proposal of the policy in the Board minutes from almost a year before it was adopted. It said: “If a boycott is to be called, it should be done by consensus of the staff.” However, McPhee concluded that "Consideration of the entire section of the minutes relating to boycotts from this meeting shows that the focus is on resolving, by policy, whether individual managers or the staff would decide boycott requests."  He also pointed to the fact that there's what seems to me to be a somewhat ambiguous statement in those minutes, just above the formal proposal, saying “BOD,” or board of directors, “can discuss if they take issue with a particular decision.” (He did not get into the extent to which he thought that "can discuss" might or might not imply "can overrule.")

In a sense, he bypassed these issues, because the heart of his decision about this part of the plaintiffs' claims was the fact that the staff had been unable to reach consensus on the boycott, and Article 16 of the bylaws says the Board will "Resolve organizational conflicts after all other avenues of resolution have been exhausted.” (That sentence in the minutes doesn't say that "If a boycott is to be called it shall be done by consensus of the staff; it says it "should be". Typically, that means it's desireable, but not mandatory.) What McPhee held, in the end, was that "Plaintiffs have offered no evidence that the Board exempted boycott matters from this power, certainly not evidence that could be considered clear and convincing."

I do happen to think myself that the evidence shows that the "boycott was indeed passed 'in accordance with OFC rules and regulations.'" However, I don't think the judge quite said that - he said that the plaintiffs hadn't presented sufficient clear and convincing legal evidence to show that it wasn't. They had the burden of proof on this issue, and they failed to meet it.

(It may be of some long term interest to note that as I read the decision, the evidence and his reasoning seem to imply that under the Co-op's current bylaws decisions about whether or not to honor a boycott might very well be completely in the hands of the staff and immune from review by the Board - if the staff were in consensus about the decision. He didn't get to that issue in this case, because they weren't.)

Best wishes,
Thad