Olympia Food Co-op
LAWSUIT FAQs
LAWSUIT FAQs
For an overview of what
has happened in the lawsuit to-date, see the Lawsuit section of the
Co-op’s Boycott Overview (link). All court filings can be read on
the Center for Constitutional Rights’ case page
(http://ccrjustice.org/ourcases/current-cases/davis-v-cox).
Frequently Asked Questions
Who is suing, and
who is being sued?
Is the Co-op being
sued?
What is an
anti-SLAPP motion and why did the defendants use it?
How is the lawsuit
about free speech?
Was the outcome of
the lawsuit impacted by the Co-op’s incorporation under the
Washington State Nonprofit statute?
Is the Co-op seeking
damages against the Plaintiffs?
What is the Citizens
United ruling, and why is it cited in the defense to this lawsuit?
Does this mean that the Co-op endorses the Citizens United ruling?
How much does the
lawsuit cost the Co-op?
What is going on
with the lawsuit right now?
Who is suing, and
who is being sued?
The lawsuit was brought by
five Co-op members: Kent L. Davis, Linda Davis, Susan G. Trinin,
Jeffery I. Trinin and Susan Mayer.
The
defendants who are being sued are: Grace Cox, Erin Genia, Eric
Mapes, Jayne Rossman (formerly Kaszynski), Harry Levine, Jackie
Krzyzek, Julia Sokoloff, TJ Johnson, Rochelle Gause, Rob Richards,
John Nason, Ron Lavigne, John Regan, Joellen Reineck Wilhelm, Suzanne
Shafer, and Jessica Laing.
Except
for Grace, Jayne and Harry (who are all staff members), the
defendants were volunteer Board members at or after the time of the
board vote on the boycott.
Is the Co-op being
sued?
No. The lawsuit has been
filed as a “derivative” lawsuit
(http://en.wikipedia.org/wiki/Derivative_suit),
in which the five plaintiffs claim to bring the case on behalf of the
Co-op itself. The defendants disagree with this, and have said so in
their legal filings.
The current and former
Board members were sued individually, but retained counsel as a
group.
What is an
anti-SLAPP motion and why did the defendants use it?
A SLAPP is a Strategic
Lawsuit Against Public Participation. According to Tim Wyrwich in the
Washington State Law Review,
“Plaintiffs file
SLAPPs to interfere with the protected free expression of defendants.
A SLAPP has little or no chance of success in the courts. Even
without a successful court judgment, though, a SLAPP accomplishes an
ulterior goal: forcing defendants who legally exercised their
constitutional rights of free expression into costly litigation that
chills their current and future involvement in public debate.”
(https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1063/86WLR663.pdf?sequence=1)
Washington State has an
anti-SLAPP law that protects defendants from frivolous SLAPPs, and
this is what the defendants used to protect themselves against this
suit.
There are many reasons
that the defendants chose to counter-file a SLAPP motion:
- Most importantly, evidence strongly suggests that this lawsuit is a SLAPP.
- Furthermore, in situations like this one where the plaintiffs can’t show that they have a likelihood of winning the case, the SLAPP counter-motion protects the defendants and the Co-op itself from the cost and burden of the litigation process.
In
lawsuits about the free speech rights of the defendant, the plaintiff
must show by “clear and convincing evidence a probability of
prevailing on the claim”.
In
plain speech, this means that plaintiffs must convince the court that
their lawsuit is not frivolous before the court requires the
defendants (and, in this case, the Co-op itself) to spend a lot of
time and money on the case. In this case, the court decided that the
suit was meritless, and spared the Co-op and defendants’ attorneys
from spending even more time defending against it.
- Lastly, the SLAPP counter-motion speeds the processing of the case, so that defendants spend less time in between court hearings. As the lawsuit was filed in 2011 and continues to date, this might be difficult to believe. But the lawsuit could be taking significantly longer, if not for the SLAPP law’s protections.
How is the lawsuit
about free speech?
The lawsuit is about free
speech in two ways:
- Defending the Co-op Board’s right to free speech on behalf of the Co-op
- Supporting our state’s Anti-SLAPP law, which protects the free speech of other activists and citizens.
The lawsuit was filed
because of the Board of Directors’ decision to join the boycott of
Israeli products in support of Palestinian human rights. In their
complaint, the plaintiffs ask the court to “permanently
enjoin the OFC Board from enforcing or otherwise abiding by the
Israel Boycott…” (emphasis added.) By filing this lawsuit, the
plaintiffs have attempted to override the decision of democratically
elected Co-op Board members.
As part of their appeal,
plaintiffs have argued that Washington State’s anti-SLAPP law is
unconstitutional and that it should be struck down. In defending
themselves, the Co-op’s past and current board members are
defending our state’s anti-SLAPP law, too.
Washington’s anti-SLAPP
law provides important protections to activists. Without it,
individuals, corporations, and others can file meritless lawsuits
against activists, forcing them to either spend huge sums of money to
defend themselves in court, or settle on unfavorable terms. Animal
rights activists, environmentalists, unions, and many other groups
have been faced with SLAPPs and have used laws like Washington’s in
their defense.
In Gordon
v. Marrone, Judge Colabella stated:
“SLAPP suits
come in many forms camouflaged as ordinary lawsuits. The conceptual
thread that binds them is that they are suits without substantial
merit that are brought by private interests to ‘stop citizens from
exercising their political rights or to punish them for having done
so’… The ripple effect of such suits in our society is enormous.
Persons who have been outspoken on issues of public importance
targeted in such suits or who have witnessed such suits will often
choose in the future to stay silent. Short of a gun to the head, a
greater threat to First Amendment expression can scarcely be
imagined.”
In continuing to fight the
lawsuit, the defendants are also working to support our state’s
strong anti-SLAPP law.
Was the outcome of
the lawsuit impacted by the Co-op’s incorporation under the
Washington State Nonprofit statute?
The Co-op’s
incorporation status was not the cause of the court’s ruling in
defendants’ favor.
The lawsuit was ruled a
“SLAPP” (or Strategic Lawsuit Against Public Participation”).
The SLAPP law applies regardless of how the
Co-op is incorporated.
Here’s why: in all
legally recognized organizations having a Board of Directors (whether
they are cooperatives, non-profits, or corporations), the Board is
legally required to follow the organization’s bylaws. The Co-op’s
bylaws (http://olympiafood.coop/bylaws.html)
give the Board – as the elected representatives of the membership –
the power to oversee all operations of the Co-op.
The plaintiffs argue that
the Board is guilty of acting “ultra vires”, or of exceeding its
powers under our bylaws. They claim that the Board was legally
required to follow the staff boycott policy, which states that all
staff members must consent for them to approve a boycott.
The trial court has stated
this argument is incorrect for at least the following two reasons.
- First, the Board did follow the boycott policy: they sent it to staff for consent. When staff consent failed, they took the issue up at the request of both a staff committee and Co-op members. Furthermore, when the Board approved the current boycott policy in 1993, the meeting notes stated that the “BOD can discuss if they take issue with any particular decision.” Boycott decisions were intended to be open to review by the Board.
- The bylaws specifically give the Board the power to adopt policies in support of the Co-op’s mission, resolve staff disagreements, and oversee the entire operation of the store. The boycott policy is not part of our bylaws, and cannot override the Bylaws.
Regardless of how the
Co-op is incorporated, the same standards apply for all types of
organizations: the Board is answerable to the
bylaws.
As a final note, there are
many misconceptions about the Co-op’s legal status and whether or
not we are a real co-op. To clarify: all consumer cooperatives in
Washington are incorporated under nonprofit statutes. The only
difference between the Olympia Food Co-op and newer cooperatives is
that newer cooperatives are incorporated under a nonprofit statute
that allows them to give patronage refunds.
As part of the Co-op’s
Strategic Priorities, which were based on the 2012 Co-op
Conversation, the Board has researched other ways to incorporate, and
is embarking on a process to gather member feedback on the
possibility of changing our incorporation. This was presented to
members at the 2013 Annual Meeting; more feedback opportunities will
be planned in 2014. Any decision to change our incorporation status
would need to pass a member vote, per Co-op bylaws.
Is the Co-op seeking
damages against the Plaintiffs?
Fees and statutory awards
were granted to the defendants when the lawsuit was declared a
Strategic Lawsuit Against Public Participation (SLAPP). These fees
and awards are part of the SLAPP law itself.
Anti-SLAPP laws are meant
to protect against frivolous lawsuits. One way that Washington’s
law does so is by requiring people who file SLAPPs to pay fees,
costs, and a statutory award. This is meant to deter people from
filing such lawsuits. The law requires that when a lawsuit is deemed
to be a SLAPP, the plaintiff has to pay a prevailing party $10,000.
Because the plaintiffs sued sixteen people, the law required that
they pay $10,000 per defendant, for a total of $160,000. The judge’s
decision on this point was made based on precedent. The award of
these statutory damages is mandatory, under the statute.
The SLAPP law also
requires that plaintiffs pay the legal fees of the defendants, but
unlike the $10,000 penalty, a specific amount is not set by the law.
The amount awarded to the defendants’ lawyers (about $62,000) was
set by the judge.
What is the Citizens
United ruling, and why is it cited in the defense to this lawsuit?
Does this mean that the Co-op endorses the Citizens United ruling?
Citizens United v.
Federal Election Commission “is a U.S.
constitutional law case,
in which the United
States Supreme Court held
that the First
Amendment prohibits the
government from restricting political independent
expenditures by corporations, associations,
or labor unions.”
(http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission).
Or in other words, the court ruled that corporations and other
organizations can give unlimited sums to political causes and
campaigns.
The Citizen’s
United decision was cited by the defendants’
legal team in court filings because it is the most recent Supreme
Court decision upholding the right of organizations to free speech.
Specifically, the citation in the Co-op lawsuit is a footnote that
says, “First amendment protection extends to corporations and
decisions made by a corporate board of directors.” The fact that it
was cited in the case does not
mean that the Co-op agrees with the ramifications of the Citizens
United ruling for unlimited corporate
election spending.
In the Co-op’s case, the
right to free speech means that the Co-op can take a stand on topics
ranging from organic standards and GMO foods to speaking out on
social issues. Without the right to free speech, the government could
theoretically regulate which issues the Co-op was “allowed” to
make decisions about, and what the scope of our decisions could be.
An organizational “right to free speech” also means that other
groups that we tend to agree with (like labor unions, farmworker
alliances, and anti-war groups) cannot have their speech rights taken
away by the government.
Some people think that any
legal framework in which organizations have a “right to free
speech” is wrong. Others think that it is unlimited corporate
contributions to political campaigns that are the biggest problem.
There are many complex and nuanced arguments about what is right;
there may be better ways for organizations to be protected from
government interference than considering them legal entities with
free speech rights.
In our current system,
these free speech rights allow the Co-op to take positions as an
organization - that is why it is cited in the lawsuit. However, the
Supreme Court’s decision (in Citizens
United) that money is a type of speech, and
that therefore no government can limit campaign contributions of
corporations, is not one supported by the Co-op.
Lastly, Citizens
United was one of more than 100 cases cited
by the defendants’ legal team. It is possible that there are others
that the Co-op itself, or individual defendants, disagree with.
However, lawsuits are argued based on case law and legal precedent,
and to refuse to use any cases which defendants did not wholly agree
with would be impractical, as a matter of consensus, and prejudicial
to the position being defended.
How much does the
lawsuit cost the Co-op?
In terms of money, the
lawsuit costs the Co-op very little. However, it has hampered the
Co-op’s ability to communicate freely, which is a different type of
“cost”.
The Co-op’s bylaws
provide that the Co-op will pay for the legal defense, fines, or
other costs of Board members. The defendants worked hard to secure
legal assistance that does not cost the Co-op money.
The defendants’ legal
team includes members of the Center for Constitutional Rights and
Davis Wright Tremaine, as well as the National Lawyer’s Guild. The
legal team is not charging for their services, but some of the
lawyers might receive court awarded fees. If fees are not awarded,
the Co-op and defendants will owe nothing.
The lawsuit has, however,
cost the Co-op in terms of our freedom of communication. Because the
Co-op is involved in a lawsuit, we have not been able to undertake
the additional dialogue within the community that we, and many
others, feel is needed. This includes reconciliation processes and
community dialogue (as recommended by the Co-op Conversation) as well
as updating the Co-op’s boycott policy. There are several reasons
that the Board has decided to pause this work:
- The lawsuit poses a financial risk to the Co-op. The plaintiffs have argued that, even if they lose the lawsuit, the Co-op should pay any fees or fines they incurred because they are suing on behalf of the Co-op. (Page 46 of their appeal, available at http://ccrjustice.org/files/Davisv.Cox_AppellantsBrief(02-22-2013).pdf). Conversely, if the plaintiffs win the lawsuit, the Co-op could be ordered to pay for the plaintiffs’ legal fees. Meanwhile, the Co-op’s bylaws provide that it will pay the expenses of Board members (e.g. the defendants). Until the lawsuit is resolved, the Co-op’s financial risk remains unclear.
- As long as the lawsuit is ongoing, individual member and community comments could be used by either the plaintiffs or defendants in the lawsuit. Open dialogue is not possible when it is only attended by those individuals who are willing to take the risk that their comments might become part of an ongoing lawsuit.
- Full participation in reconciliation processes is not possible when some parties cannot take part because they are named in an ongoing lawsuit. Regardless of whether an individual is in the right or in the wrong, the threat of their statements being used against them in court precludes open dialogue.
The Board is committed to
continuing their work on the Co-op Conversation’s recommendations,
and on the boycott policy review, as soon as the lawsuit is resolved.
What is going on
with the lawsuit right now?
On April 7, 2014,
attorneys for both parties were informed that the Washington State
Court of Appeals had ruled in favor of the 16 defendants by upholding
the Thurston County Superior Court ruling by Judge Thomas McPhee. The
earlier ruling dismissed the lawsuit. The plaintiffs have the right
to petition for review or reconsideration of the appeal, with a
deadline of May 7th. For more information: http://bit.ly/Otzk8P
