Bid to ban boycott by food co-op slapped down in court
In addition to the links at the foot of the 2nd article, see Anti-BDS group takes food co-op to court.
The first article, about the court judgment, is followed by a Mondoweiss probe into the backgrounds of the plaintiffs.
Court Finds Suit Is Effort to Chill Boycotters’ Public Statements On Issue of Public Concern
OLYMPIA, WA and NEW YORK – Today, in a lawsuit brought against current and former members of the Olympia Food Co-op board of directors for their decision to boycott Israeli goods, a Washington State court dismissed the case, calling it a SLAPP – Strategic Litigation Against Public Participation – and said that it would award the defendants’ attorneys’ fees, costs, and sanctions. The judge also upheld the constitutionality of Washington’s anti-SLAPP law, which the plaintiffs had challenged.
In a court hearing last Thursday, lawyers from the Center for Constitutional Rights (CCR) and Davis Wright Tremaine LLP argued that the court should grant the defendants’ Special Motion to Strike and dismiss the case because it targeted the constitutional rights of free speech and petition in connection with an issue of public concern.
“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.
On Thursday, the courtroom was filled with interested observers, and boycott supporters held a rally outside the courthouse. Today, the courtroom was filled to overflowing and many co-op supporters spilled into the hallway.
“We’re thrilled that the court saw fit to protect the board’s right to free speech. This decision affirms the right to engage in peaceful boycotts without fear of being dragged through expensive litigation,” said Bruce E.H. Johnson of Davis Wright Tremaine LLP, who drafted Washington State’s Anti-SLAPP law.
Also at the hearing on Thursday, the court denied plaintiffs’ motion for discovery, which sought to depose defendants and obtain documents. The defendants’ attorneys had argued that lengthy depositions and voluminous document production is precisely the type of burden the anti-SLAPP statute was intended to prevent. Before the case was filed, the plaintiffs sent the co-op board members a letter indicating that plaintiffs would bring a “complicated, burdensome, and expensive” legal action if the co-op did not end the boycott.
“Today’s victory is not only for the Co-op, but one for free speech,” said Jayne Kaszynski, spokesperson for the Olympia Food Co-op, and one of the defendants in the case. “We look forward to returning all of our energy to the Co-op’s mission.”
SLAPPs are lawsuits that target the constitutional rights of free speech and petition in connection with an issue of public concern Although many cases that qualify as SLAPPs are without legal merit, they can nonetheless effectively achieve their primary purpose: to chill public debate on specific issues. Defending against a SLAPP requires substantial money, time, and legal resources, and can divert attention away from the public issue and intimidate and silence other speakers. Washington State’s Anti-SLAPP statute was enacted in 2010 to deter such lawsuits.
The boycott is part of a global Boycott, Divestment and Sanctions (BDS) movement against Israel for what boycotters say are violations of international law and the denial of Palestinian human rights. The lawsuit seeks to prevent enforcement of the boycott policy and to collect monetary damages against the 16 past and current board members. The case was filed by five co-op members, purporting to bring the suit on behalf of the co-op itself, which has approximately 22,000 members.
The Olympia Food Co-op is a nonprofit corporation that was formed in Olympia, Washington in 1976. The co-op seeks to make good food accessible to more people while encouraging economic and social justice, and it has a long history of social justice work. In 2010, the board passed a resolution by consensus to boycott Israeli goods.
The case is Davis, et al., v. Cox, et al., Case No. 11-2-01925-7 in theSuperior Court of the State of Washington in Thurston County. For more information and today’s argument, and to view filings in the case, visit the Center for Constitutional Rights case page.
The Center for Constitutional Rights is counsel on the case with CCR cooperating counsel Barbara Harvey from Detroit, Michigan, and Steven Goldberg from Portland, Oregon, along with Seattle attorneys Bruce E.H. Johnson and Devin Smith of Davis Wright Tremaine LLP. For more information about Davis Wright Tremaine LLP, visit http://www.dwt.com/.
The Olympia Food Co-op is a member-based, not-for-profit, natural foods grocery store with two locations in Olympia, WA. The Olympia Food Co-op has provided healthy, organic and local food to the Olympia area since 1977, with an emphasis on promoting social and environmental responsibility. The stores are collectively managed and largely volunteer-run. Visit www.olympiafood.coop.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.
By Phan Nguyenon, Mondoweiss
The first court hearing in the lawsuit against the Olympia Food Co-op will commence on Thursday, February 23. The lawsuit seeks to force the Olympia Food Co-op, the first US grocery store to publicly honor the boycott of Israeli products, to nullify the boycott and once again stock gluten-free ice cream cones specifically sourced from Israel.
Supporters of the boycott and of the Olympia Food Co-op released a video calling for support and have asked supporters to sign a statement of solidarity.
Lawsuit not about Israel?
The lawsuit against the Co-op can be classified as a SLAPP—a Strategic Lawsuit Against Public Participation—whose sole purpose it to deter political expression.
The defendants (current and former Co-op board members) have filed a motion to dismiss the lawsuit under Washington State’s anti-SLAPP law.
However, in order to conceal the censoring nature of the lawsuit, the five plaintiffs claim that the lawsuit is not politically motivated and is not about Israel. Instead, they contend that as Co-op members, they are simply opposed to the process in which the boycott was instituted and would have no problem if a boycott of Israel was insituted under an alternate method.
Yet previous statements and actions belie such claims.
Let’s look at some of the players behind this “apolitical” lawsuit, from the plaintiffs to the StandWithUs-affiliated attorneys to the Israeli officials.
We begin with the plaintiffs, four of whom appeared in this melodramatic StandWithUs video explaining the dangers of BDS: Why BDS Scars Don’t Heal A StandWithUs Production
Of the four plaintiffs in the video, three of them (Susan Trinin, Kent Davis, and Linda Sternhill Davis) attempted to overturn the boycott by running for the Co-op board of directors in November 2010. All three lost by a considerable margin to candidates who supported the boycott. The winning candidates are now among the defendants in the lawsuit, even though they did not serve on the board when the boycott was approved.
Susan Trinin (plaintiff)
In a local alternative newspaper, Susan Trinin wrote an incoherent essay against the boycott, in which she rambled about “turds” in sandboxes and faulted the Co-op for not “address[ing] the secret/underground national security government” instead.
While running for the Co-op board, Trinin made the following statement at an Olympia synagogue on October 24, 2010:
“Pardon me, but nowhere do international politics figure in [the Co-op mission statement]…We are to support the long-term health of this business…The reason why I am running for the board in the Olympia Food Co-op is because I want to get back to groceries. I want to get back to my community…I want to keep our community together, and I want to get out of international politics.”
She lost the election, and is now suing the Co-op instead.
After losing the election, Trinin appeared at the subsequent Co-op board meeting on December 16, 2010, where she tried and failed to get one of the winning board candidates disqualified.
At the same meeting, she proclaimed the board election “the dirtiest election since the Bush dynasty,” comparing it to “a third world country with ancient blood feuds bubbling to the surface.”
Jeff Trinin (plaintiff)
On August 12, 2010, at a Co-op–sponsored community forum, I implored boycott opponents to follow Co-op procedure and institute a member-initiated ballot rather than resort to bullying tactics to rescind the boycott.
Jeff Trinin, who spoke immediately after me, responded that he planned to do just that. This was recounted in the Olympian newspaper:
“Some boycott supporters suggested that those against the boycott launch a member-initiated ballot to overturn the board’s decision. That’s what longtime member Jeff Trinin said he plans to do. Trinin, also unhappy with the process, has collected 350 signatures that he soon plans to submit to the board for consideration, he said.”
However, when Trinin and his colleagues finally submitted the petition to the Co-op board, it turned out not to be a formal petition for a member-initiated ballot, but rather a call to bypass standard Co-op procedure and immediately rescind the boycott.
Although the plaintiffs claim to “have exhausted all means within their reach to obtain compliance,” they rejected the most straightforward procedure available to them. Moreover, they attempted to force the Co-op board to disregard Co-op procedures in order to rescind the boycott, yet they are now suing the Co-op for supposedly not following procedure.
Linda Sternhill Davis (plaintiff)
Linda Sternhill Davis is perhaps the most overt fearmonger in the group. In an “open letter” email addressed to me on Oct. 14, 2010, Davis wrote:
“Kent [Davis] and I have worked tirelessly on issues involving human rights for decades, but because we both believe that there should be a two-state solution, with separate, self-determination in both Israel and Palestine, we have not been involved with the efforts of the BDS movement whose global leaders have admitted that they seek a one-state solution which would replace the Jewish state of Israel with a Muslim state of Palestine.”
At a forum that took place at an Olympia synagogue on October 24, 2010, Davis stated the following:
“I wish the Olympia Food Co-op board had looked at the actual wording of what this boycott language entailed. If you read the fine print, it’s going to replace the Jewish state of Israel ultimately with a Muslim majority Palestinian state, regardless of what Olympia BDS wants everyone to believe. I am concerned that those facts are not getting out to our community…They [Olympia BDS] don’t want the whole truth to come out.”
Although Davis fears that Israel will become a Muslim caliphate because of the Co-op boycott, she wants us to believe that she doesn’t mind, as long as the boycott is instituted in a more egalitarian way.
Kent Davis (plaintiff)
In the lawsuit, Kent Davis claims to be a Co-op member who was wronged by the passage of the boycott. However, the Olympia Food Co-op approved the boycott proposal on July 15, 2010, and Davis did not become a Co-op member until one month later.
Moreover, he was not a member of The Evergreen State College campus community when he addressed a May 11, 2011 meeting of the Evergreen board of trustees. At that meeting, Davis told the college board to ignore the overwhelming student vote calling for a socially responsible investment policy and divestment from the Israeli occupation. He explained:
“One of the three mandates of the BDS movement is the right of return, which would lead to the end of the Jewish state of Israel by causing an influx of heirs whose ancestors of their own volition left Israel. The number of heirs is exponentially greater many times over than the original ancestors who left Israel.”
Let’s just ignore the fact that some of these “ancestors” are still alive and shop at the Olympia Food Co-op.
Davis also accused The Evergreen State College of being “hostile against Jewish students,” despite the fact that several Jewish students spoke before and after Davis at the meeting, all of whom supported the divestment measure, except for a single Jewish student who was on the StandWithUs payroll.
In the StandWithUs video above, Davis claims that the Co-op’s boycott
“gives license to people who are not completely balanced. It gives them license to express anti-Semitic thoughts, which then lead to anti-Semitic actions…I really don’t think it’s comfortable for Jews to live in the city of Olympia and be outwardly expressive Jews…I just don’t feel comfortable discussing my religion or my beliefs in a mixed-group environment anymore.”
Yet we are to believe that Davis would be content if the boycott passed some other way. As much as Davis is concerned about anti-Semitism, there is no discussion of anti-Semitism in the lawsuit.
Robert Sulkin (plaintiffs’ attorney)
Robert Sulkin is one of two attorneys representing the plaintiffs in the lawsuit. Sulkintold an Olympian reporter that the goal of the lawsuit “is to bring people together at the end of the day.” However, Sulkin’s connection to pro-Israel advocacy organizations would seem to indicate he has other motives.
Sulkin is a founding member of McNaul Ebel Nawrot & Helgren, a high-priced Seattle law firm dealing in corporate litigation. Sulkin is also a prominent figure in the Seattle mainstream Jewish community. He serves as board president of the Jewish Day School of Seattle, is on the board of directors at the Shalom Harman Institute in Jerusalem, and is a co-founder of Hope for Heroism, an organization based in Seattle that provides assistance for disabled Israeli soldiers, which Sulkin praises as “showing our commitment to Israel and her people.”
But that’s not all. Robert Sulkin’s wife Alayne recently served as a “row host” for aStandWithUs annual community reception. On the web page where she is listed as a row host, we can view the HTML source and find, commented out, that at one point, Robert Sulkin was also partnered up with his wife to be a row host for StandWithUs.
In other words, the plaintiffs to the lawsuit, while denying that they are being managed by the pro-Israel organization StandWithUs, are being represented by an attorney affiliated with StandWithUs.
Avi Lipman (plaintiffs’ attorney)
Avi Lipman is a junior member of McNaul Ebel Nawrot & Helgren who works under Robert Sulkin. On March 10, 2011, six months before he filed the lawsuit on behalf of his clients, Lipman traveled to Olympia, where he met with StandWithUs regional director Rob Jacobs(also from Seattle), StandWithUs co-chair Carolyn Hathaway (from Bellevue, Washington), and Israeli consul general Akiva Tor (from San Francisco). The meeting was also attended by the future plaintiffs in the lawsuit.
At the meeting, according to StandWithUs minutes, a “legal presentation” was given. Further meeting minutes signal that the legal presentation concerned strategy for fighting BDS by suing the Olympia Food Co-op. The lawsuit is described as a “project” of StandWithUs.
Rob Jacobs (Northwest regional director of StandWithUs, Seattle)
Jacobs’s complicity in the Olympia Food Co-op lawsuit is well-covered in Ali Abunimah’s exposé on the matter. Abunimah interviewed Jacobs, who gave answers inconsistent with the details we now know from the StandWithUs weekly reports.
On July 30, 2010, in an unsoliticted email to an Olympia activist who accused StandWithUs in Seattle of intervening against the Olympia Food Co-op, Jacobs wrote:
“By the way, we’ve had no active part in the growing movement within Olympia against the Olympia Food Coop Boycott. That is being planned and organized by local community leaders.”
But a year later, soon after being outed by Ali Abunimah as a major player in the campaign against the Co-op, Jacobs attempted to make his involvement self-evident. In a September 2011 mailing to StandWithus supporters, Jacobs wrote:
“For more than a year, ever since the Olympia Food Co-op last year passed a boycott of all Israeli products with no notice to its members and no public discussion, StandWithUs Northwest has been working closely with a dedicated group of anti-boycott activists [in Olympia].”
Akiva Tor (Israeli consul general, San Francisco)
I have partly covered Tor’s involvement in an earlier post.
On March 10, 2011—following Tor’s meeting with StandWithUs, the plaintiffs, and their lawyers—a number of Olympia activists (including myself) confronted Tor at a local restaurant. At the time, none of us were aware of Tor’s meeting about the lawsuit earlier that day, although we suspected that his visit was related to squashing BDS in Olympia.
Our meeting with Tor was recorded, and I have transcribed a portion below, where local activist Anna-Marie Murano asked Tor why he was in town:
Tor: There’s a very strong BDS movement in Olympia. I do not understand how that is going to get us to a peace—
Murano: Is that—
Tor: One second, one second—
Murano: Are you here because of the BDS movement…
Tor: No! I’m here because the state capit— I’m here—
Murano: …and are you visiting city officials? And are you visiting college campus presidents?
Tor: I’m here because the state capital—
Tor’s assistant: I’m sorry to interrupt. We have a flight in about an hour and a half.
Murano: I really want to know, are you here in Olympia—
Tor: I’m here in Olympia—I’m here in Olympia because it is the state capital of Washington—
(unknown): Could you speak up a little bit, sir?
Tor: I’m here in Olympia because it’s the state capital of Washington, and I had a full day in your state capital, meeting officials about issues that are important for Israel–State of Washington relations, such as alternative energy and trade.
Somehow Tor had forgotten that he had a meeting about the Olympia Food Co-op lawsuit earlier that day, six months before the lawsuit was actually filed.
Danny Ayalon (Israeli deputy foreign minister)
News of the Israeli government’s possible involvement in the Olympia Food Co-op lawsuit was covered in the Israeli press. As Richard Silverstein noted on his Tikkun Olam blog, two weeks after the lawsuit was filed, the Israeli Channel 10 news program Tzinor Layla reported on the connections and asked Danny Ayalon if the Israeli Ministry of Foreign Affairs was involved in the lawsuit.
Ayalon, who is Akiva Tor’s superior, gave a circumlocutory response that was essentially affirmative:
“It is very important to make use of every means at our disposal, mainly legal means. It is against American law to engage in boycotts certainly on any political basis, including this one. We are moving to a policy that is much more proactive, a policy that doesn’t just react.
“And it’s true, we are using this organization, StandWithUs, to amplify our power. There are other organizations, some Jewish and some non-Jewish, with which we are partnering in the same fashion. This is certainly an approach which will become even more evident with time. “(Translation by Richard Silverstein)
This is just a sampling of the long story behind the efforts to derail the Olympia Food Co-op boycott of Israeli goods. More details may be provided as the court case progresses.
For further information about the Olympia Food Co-op lawsuit, visit the following links:
Center for Constitutional Rights (part of the legal team representing the defendants)
Electronic Intifada’s coverage of the Olympia Food Co-op, especially the article“Uncovered: Israel’s role in planned US lawsuit to fight BDS”
Richard Silverstein’s coverage on his Tikkun Olam blog
The first hearing of the Olympia Food Co-op lawsuit will be live-tweeted by the Palestine Freedom Project via @palfreedom, beginning at 9 am PST on Thursday.
Phan Nguyen is a Palestine solidarity activist based in New York. Follow him on Twitter: @Phan_N