Thursday, May 31, 2012

A SLAPP from Range?

Range Resources is one of the major players in drilling the Marcellus Shale in Pennsylvania, and the company has just been hit with a lawsuit in which three Washington County families claim they have health problems and were exposed to carcinogens as a result Range Resources Corp.'s drilling operations

But the company is also at the center of a legal controversy in Texas. A Weatherford, Texas man Steven Lipsky made a video purported to show him igniting methane tainted well-water from a hose.  He sent the video to blogger Sharon Wilson, who posted it.  He also had the water tested and results sent to the EPA. What happened next  reads like the plot of legal thriller were the big bad Goliath unleashes the legal hounds on the courageous crusading David :
For gas-driller Range Resources Corp. -- which Lipsky blames for contaminating his water from two wells near his home -- those actions amount to a conspiracy to harm its reputation, and it went to state court seeking $3 million in damages from Lipsky and Rich.
Range won one round in its fight this week, when a judge ruled that Wilson had to turn over e-mails she exchanged with the EPA and Lipsky, as she is a “central and recurring character in the conspiracy lawsuit.”
Many feel that this lawsuit is a SLAPP, or Strategic Lawsuit Against Public Participation. SLAPPs are not meant to be won, rather they are a method to intimidation by threat of legal action.  The American Bar Association explains it much better than I can:
Professors George Pring and Penelope Canan coined the term “strategic lawsuit against public participation” (SLAPP) more than two decades ago to describe lawsuits brought to retaliate against those who exercise their First Amendment rights. The quintessential SLAPP is a lawsuit against someone who speaks out about local development or environmental issues.

Since that time, the concept of SLAPP has broadened, as practitioners, academics, legislators, and judges across the country have recognized that such lawsuits are an increasingly used weapon against speech that some people and businesses would rather have silenced....

For example, if a group of parents complains about the management of their children’s charter school, the response by the school management may be to sue the parents for defamation. If a union seeks to have local governments issue resolutions against a food manufacturer, the response of the manufacturer may be to sue the union for racketeering and conspiracy. In each case, rather than answer speech with speech, some plaintiffs decide that the best way to silence critics is to drag them into court.
Journalists, newspapers, reporters, and broadcasters have all been the victims of SLAPPs. In fact, members of the media are frequent targets of such suits, as they often bring to light information that some would rather keep hidden....
Consumers who have utilized the Internet to voice their displeasure with products and services have also often been the targets of SLAPPs and continue to be threatened with libel suits for nothing more than posting negative reviews and comments. As the New York Times recently reported, a consumer who posted negative reviews about an online appliance company on the website ResellerRatings received an email from the company threatening to file a libel lawsuit. In the message, the company claimed that the consumer agreed at the time of purchase to refrain from posting any negative comments about the seller. Consumers must agree to such terms to purchase any goods from the company. The consumer later removed the comments after receiving a refund. However, the company has indicated that the refund was “a one-time courtesy” and it will continue to require buyers to enter into its libel agreement before purchasing any goods.

SLAPPs can be an extremely effective way to silence someone, especially consumers exercising their First Amendment rights. As all attorneys know too well, even meritless lawsuits require a defense. Faced with the task of defending the suit, many defendants decide to settle. And that settlement might come at the price of your apology, “correction,” or agreement to refrain from speaking publicly about the issue ever again.
And the Fort Worth Star-Telegram reveals a new wrinkle in the case:
A Parker County judge who, in the midst of an environmental case, bragged in campaign literature that he had forced the EPA to turn tail lost his Republican primary battle Tuesday.
State District Judge Trey Loftin's next challenge will be to stay on the bench as the case involving gas drilling proceeds.
Steven Lipsky and his wife, Shyla, who sued Range Resources, filed a court motion Tuesday to disqualify or recuse Loftin. The motion says Loftin released campaign mailers urging his re-election on the basis of "rulings he had made against the Lipskys."
The motion further argues that Loftin believed that the outcome of the case would affect his re-election and "thus, the campaign mailers show that Judge Loftin believes that he had a direct financial and personal interest in the outcome of the proceeding, which requires his disqualification."
On Tuesday, he lost to Weatherford attorney Craig Towson, who captured 52 percent of the vote, according to unofficial returns. Towson, who could not be reached for comment, previously said a judge shouldn't "ever comment about a case pending in his court."
This certainly does not look like an impartial arbitrator and gives the appearance of impropriety on the part of the judge. Since this gives the impression that the case was not made on actual proof of harm, it bolsters the allegation that Range's lawsuit is a SLAPP at the Lipskys.  In fact, the couple are seeking to halt the defamation suit under a new anti-SLAPP law passed last summer in Texas. The irony of the whole thing is that in the process of claiming protection from defamation, Range looks like a bully.

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