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StandWithUs invests nearly half a million dollars in ongoing anti-BDS lawsuit against Olympia Food Co-Op

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On May 28, 2015, the Washington State Supreme Court struck down the state’s anti-SLAPP law, following an appeal filed by five individuals who are suing the Olympia Food Co-op for boycotting Israeli products.

The Israeli advocacy organization StandWithUs immediately hailed the decision as a “BDS Defeat,” “a major setback to the anti-Israel boycott, divestment, sanctions (BDS) campaign,” and an “overwhelming victory.” In reality the Supreme Court did not rule on the merits of the plaintiffs’ case, much less on BDS. Instead it determined that the state law against SLAPP suits—suits designed to deter free speech by imposing a legal and financial burden on the defendant—violated the constitutional right to a trial by jury.

As the anti-BDS suit was originally dismissed in Thurston County Superior Court on grounds that it had violated the state anti-SLAPP law—and as the law has been struck down—the case will now resume in that court.

StandWithUs admits to involvement in the lawsuit

Before the lawsuit was even filed in 2011, internal StandWithUs documents revealed that the organization was behind the suit—even coordinating with the Israeli Ministry of Foreign Affairs. On March 11, 2011, six months before the civil complaint was filed, StandWithUs hosted a secret meeting in Olympia, Washington, with the future plaintiffs and with San Francisco–based Israeli Consul General Akiva Tor. There, plaintiffs’ attorney Avi Lipman gave what StandWithUs meeting notes described as “presentation of legal case.” Subsequent notes referred to the Olympia Food Co-op lawsuit as a StandWithUs “project.”

At times since then, StandWithUs has publicly denied involvement in the suit, claiming that it had done no more than recommend a StandWithUs-affiliated attorney to the plaintiffs. The case had initially incurred few legal costs, and as StandWithUs-affiliated attorney Rob Sulkin has admitted to working pro bono, StandWithUs could reasonably deny financial sponsorship of the suit.

However, after losing the case first in Superior Court and later in the State Court of Appeals, the plaintiffs incurred $230,000 in legal fees. Having now received a positive decision in the State Supreme Court, StandWithUs has changed its tune and is openly taking credit for the case, admitting to posting a bond of over $400,000 so that the case could be heard in the Supreme Court:

When the trial court ruled against the plaintiffs, it assessed $232,000 in fees and penalties, an amount that would have been an overwhelming burden to the plaintiffs.

To appeal the case, the plaintiffs would have had to post a bond for more than that amount – over $400,000 – extremely difficult for the five middle class Olympia plaintiffs.

StandWithUs saw the situation the plaintiffs were in – long-time co-op members, supporters of Israel – who now faced devastating financial penalties simply because they stood up for fair treatment of Israel and demanded that their co-op board follow its own rules and bylaws.

StandWithUs stepped in and borrowed the money to post the bond for the full amount so that the plaintiffs could challenge the lower court decisions.

Yet the claim that StandWithUs’s involvement is incidental—in this case, investing nearly half a million dollars out of sympathy for “five middle class Olympia plaintiffs”—is implausible. One would have to accept that StandWithUs also incidentally organized a “legal presentation” between the plaintiffs and the Israeli consul general six months before the suit, that the plaintiffs incidentally appeared in a StandWithUs anti-BDS propaganda video directed at food cooperatives around the same time, that StandWithUs incidentally referred to the lawsuit as a StandWithUs “project” in its internal documents, that StandWithUs incidentally provided the lead attorney for the plaintiffs, and that an attorney filing an amicus curiae in support of the plaintiffs in the Court of Appeals is also incidentally affiliated with StandWithUs.

Plaintiffs’ claims about process, not Palestine, are undermined

Throughout the duration of the lawsuit, the plaintiffs have claimed that their case is not motivated by Middle Eastern politics, which would have otherwise affirmed that the lawsuit was targeting constitutionally protected participation in an “issue of public concern.” Instead the plaintiffs situate their complaint in the claim that the Co-op board of directors had violated its own policies, independent of a position on BDS.

In other words, the lawsuit is ostensibly a complaint over internal Co-op process, not BDS. If the Israel boycott had been instituted by other means, the plaintiffs suggest, there would be no cause for complaint. Yet the claims by the plaintiffs’ own financial sponsors undermine this, with StandWithUs falsely declaring a victory over BDS with the Supreme Court ruling.

In an article that was published in Haaretz and the Forward a week before the Supreme Court ruling, reporter Debra Nussbaum Cohen mistakenly fell for the process argument:

In 2011 the food co-op in Olympia, Washington, voted to boycott. Some members, unaware that the issue had been brought to a vote, demanded a new vote in a bid to override the old one.

When that wasn’t allowed, they launched a lawsuit against the co-op’s board for violating its bylaws.

Yet this is completely false. The board had in fact asked the plaintiffs if they wanted a member vote on the boycott, and the plaintiffs repeatedly said no. As the plaintiffs’ attorney informed the Co-op prior to filing the complaint:

You propose as an alternative to litigation that our clients avail themselves of the “member-initiated ballot process.” This suggestion is not well taken.

How did Nussbaum Cohen get the point of the lawsuit so wrong? It’s possibly because the only individual she acknowledged interviewing about the Olympia case was Robert Jacobs, the Pacific Northwest director of StandWithUs.

Despite rejection of anti-SLAPP law, lawsuit remains weak

Contrary to StandWithUs’s claims of a “BDS Defeat at Washington Supreme Court,” the court never actually considered BDS in its ruling.

The plaintiffs appealed on several grounds, such as that the Co-op’s boycott of Israeli products was not protected speech and that the boycott was unlawfully enacted. To suggest that boycotts are not legally protected speech, the plaintiffs’ attorneys even made a reference to the “checkered history” of boycotts, such as the “anti-integration boycotts in the South during the 1960s,” while conspicuously omitting the more well-known boycotts from that time period.

Yet by the time the case was finally heard in the State Supreme Court, the issue was not about BDS or even Co-op process, but rather about the constitutionality of the state anti-SLAPP law, with several outside parties filing amici curiae over the issue.

The American Civil Liberties Union, though usually supportive of anti-SLAPP legislation, filed a brief against the Washington State law on the basis that it was “one of the most if not the most restrictive provision on the books.” At the same time, the ACLU noted that its “amicus takes no position on the boycott issue.”

On the other side, the Reporters Committee for Freedom of the Press—in conjunction with twenty-nine other press organizations—filed an amicus in support of the Washington law on the basis that the law was “constitutionally sound” and “consistent with a long-standing nationwide trend of protecting speakers from frivolous suits meant to silence their speech.”

The Supreme Court eventually made its ruling solely on the issue of the state anti-SLAPP law, ignoring all the plaintiffs’ arguments pertaining to BDS and Co-op policies. In doing so, the Supreme Court did not challenge the claims of the previous four judges who affirmed that the plaintiffs failed “to establish by clear and convincing evidence a probability of prevailing on the claim.”

In other words, every single judge who has considered the merits of the anti-BDS lawsuit has found the case itself to be weak. But the Supreme Court ruled that the state’s anti-SLAPP law set the bar too high, and that the ultimate consideration of the merits of the case should be left to a jury.

Thus what the anti-BDS forces are hailing as a “big win” is not a legal determination against the right to boycott, but rather the opportunity for the five StandWithUs-sponsored plaintiffs in the Olympia Food Co-op lawsuit to have their case heard before a jury of their peers—before losing again.

Further information on the Olympia Food Co-op lawsuit can also be found in my previous articles:

“Who’s who behind the Olympia Food Co-op lawsuit”

“Excerpts from the Olympia Food Co-op lawsuit dismissal”

“Appeals court upholds dismissal of anti-BDS lawsuit against Olympia Food Co-op”

Attorney Ken White of the Popehat blog offers a concise analysis of the Washington State Supreme Court ruling on the anti-SLAPP law.

Documents filed in the Olympia Food Co-op anti-BDS lawsuit can be found at the Center for Constitutional Rights.

About Phan Nguyen

Phan Nguyen lives in New York and has a Twitter account: @Phan_N

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16 Responses

  1. Boomer
    May 29, 2015, 3:15 pm

    I haven’t been following this, and am a bit unclear where it leaves things. I imagine that we will be reading more about the case, if it goes forward. I wonder what costs the other side has incurred? This sounds like a lot of money for some small private group. Also, I wonder if the anti-BDS legislation that is (as I understand it) working though Congress will affect this or similar cases?

    • TwoRedDogs
      May 29, 2015, 8:51 pm

      From the horse’s mouth:

      “Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down. A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution. Perhaps in Europe, where hate speech laws exist and are acceptable within their own legal frameworks, such bills could be sustained. But not here in America.”

      http://www.jta.org/2015/05/29/news-opinion/israel-middle-east/op-ed-comprehensive-approach-to-fighting-bds-is-needed

      Of course they know it too, but are out to intimidate.

      Stand With Us must be behind this as well.

      http://forward.com/news/308902/shadowy-web-site-creates-black-list-of-pro-palestinian-activists/

      • Boomer
        May 30, 2015, 9:13 am

        Thank you. As a matter of principle, that is reassuring. As a practical matter, however, it seems that such laws and litigation–even if ultimately thrown out by the courts–could be very effective means of silencing dissent. Especially when the charge of “anti-semitism” is added. Though people at this site realize that the charge is bogus (including the Zionists, though they won’t admit it), many Americans are easily misled on this due to the media blackout. Fear of ruinously expensive lawsuits and social condemnation can be powerful.

  2. a blah chick
    May 29, 2015, 3:47 pm

    “Throughout the duration of the lawsuit, the plaintiffs have claimed that their case is not motivated by Middle Eastern politics… Instead the plaintiffs situate their complaint in the claim that the Co-op board of directors had violated its own policies, independent of a position on BDS.”

    And that’s why Stand With Us got involved, because if co-ops violate their own policies then the terrorists have won.

  3. TwoRedDogs
    May 29, 2015, 8:46 pm

    Who is stopping them from starting their own co-op and stuffing it with all the Israeli goods they want?

    Is Stand With Us also behind the blacklist BDSers Forward wrote about?

    • Marnie
      May 31, 2015, 12:27 am

      That’d be the obvious solution if this were a matter of trying to sell your brand – good old-fashioned competition, the definition of capitalism, right? But it’s not about being proud of your brand and wanting healthy competition for a chunk of those consumer dollars. It’s about power and an ideology that is becoming more and more nazi-like with every move it makes. I think there’s also a very real fear in the zionist enterprise that a product with the stamp “Made in Israel” won’t sell. It has to be shoved down the throats of consumers. In the 30s, the brownshirts vandalized Jewish property, stood outside Jewish businesses and seriously discouraged patronizing of these businesses by non-Jews. The zionists are using the same tactics but turning it on its head and demanding their products be on the shelves of this co-op, whether they want them or not and obviously they don’t want them, because not to have them on their shelves isn’t the free market at work, it is, of course, antisemitism at is root, as always. And it’s just sickening.

  4. Denis
    May 30, 2015, 1:25 am

    Phan, you’ve done a great job in following this very important issue, particularly the back-story of StandWithUs aka Captain Israel. Looks like your work may be just beginning.

    The best case scenario that I see is that the Olympia Food Coop folks will now file for a summary judgment and the judge will throw the case out again — but the standard is different for SJ than under the anti-SLAPP law, which is what the WA Supreme Court was concerned about.

    And the judge could still apply sanctions against these Zionists if he finds the suit was frivolous or has no reasonable basis.

    But this is likely to be a long haul for the OFC folks, and if the case gets into discovery, it will be expensive. The Captain Israel folks have all that money behind them that the US taxpayer sends to Israel then coming back to the Washington lawyers by way of Captain Israel.

    This is a very important case for the BDS movement. If readers here have some spare cash, I’m sure the Center for Constitutional Rights people could use some help. I’m not affiliated with them and don’t know any of them, I would just hope they can stand up financially to the Zionists.

    Here’s where you can find a copy of the WA Supreme Court’s opinion:

    http://tinyurl.com/pg7v78w

  5. michelle
    May 30, 2015, 2:07 am

    .
    isn’t it against the law to transport receive sell or distribute stolen goods/property
    .
    does this even involve BDS
    .
    G-d Bless
    .

  6. NickJOCW
    May 30, 2015, 9:20 am

    The principal benefit of such confrontations, as with the FIFA issue, is surely that they bring the I/P debate further into daylight. Having said that, a store will only stock what its customers buy, and if they cease buying them the store will cease stocking them. My view is the origin of all items should be more boldly identified as there are hosts of reasons one might want or not want to buy goods from a particular source. I choose anything from Greece above alternatives because it’s a small way to give them a hand. Equally there goods from other sources I won’t buy as a matter of principle; I live in Southern Spain and recently a major supermarket was offering oranges from South Africa. I have nothing against South Africa but considering the tribulations suffered by Spanish agriculture as a result of US inspired EU sanctions against Russia, I thought, Screw that! In the end the People have the most compelling influence on moral issues. The Law is double-edged, in this case it sounds like a bunch of Zionists are attempting to use it to thwart the will of Coop members. That’s not right.

  7. SQ Debris
    May 30, 2015, 2:40 pm

    The horror is that this ruling will result in huge legal expenses for the coop. That’s the point of the litigation, to lawfare them into the poorhouse. The coop and their counsel should start a crowd funding initiative to fight back.

  8. Kay24
    May 30, 2015, 4:53 pm

    Intimidation and making an example of one, so that others will be reluctant to do the same.
    We can guess who is behind this lawsuit.

    The same business model as calling anyone anti-semitic when criticizing Israel.
    No one dares to say anything negative or bring attention to Israel’s criminal acts including massacre of civilians after that.

  9. michelle
    May 30, 2015, 9:42 pm

    .
    that picture is bad
    imagine what those people might be standing on …
    .
    G-d Bless
    .

  10. piotr
    May 31, 2015, 11:02 am

    A question to law literate folks: I understand that the issue is what standard applies to non-jury decisions imposing penalties. Opponents of the boycott are counter-sued as raising a case without merit with explicit intention to create a nuisance. Suppose that Mondoweiss would write in an article about “Piotr who delusionally thinks that he is the Lord of the Universe” and I would file a libel suit, claiming the damage to my reputation and material well-being, since it can decrease the level of devotion and gifts to Piotr with the false claim that he is not the Lord (while he is)”. The court can dismiss the case, fine Piotr for making fun of the court or even award damages to Mondoweiss. However, the court has to evaluate the arguments raised by Piotr, and do it in a way that does not impinge on the right of Piotr to have a jury trial.

    So the Washington State stature allowed to dismissed the case under more permissive (and thus apparently unconstitutional) standard, kind of “most people would not believe it” rather than “only few people would believe it”. And the judge does not need to present any statistics on how many people in fact believe that Piotr is the Lord of the Universe. But there can be other ways to reason about Piotr’s case: if he is indeed the LofU then as a public figure he has no right to damages without submitting the proof that Mondoweiss did not believe in its claim, or his is not LofU and there was no libel.

    I would not be too afraid for Olympia Coop yet.

  11. pabelmont
    June 1, 2015, 2:48 pm

    piotr: This decision is very harmful w.r.t. SLAPP lawsuits in Washington — and therefore is indeed a big win for StandWithUs. I’d very much like to see how the anti-SLAPP statutes in other states have fared on appeal of this sort. Here, the court has thrown out the entire statute, hence the $10,000 “fine” and the payment by the plaintiff of defendant’s attorney’s fees as well as the early dismissal of the SLAPP claim. SWU has ruined anti-SLAPP in Washington until a new statute can be enacted.

    So this suit must go forward in the ordinary manner w/o special anti-SLAPP protections.

    Now this suit looks very simple to an outsider: in a motion to dismiss, the co-op must show evidence (e.g., its rules and sworn written testimony as to what events happened) ) to show that the plaintiffs were incorrect in claiming the vote went against co-op rules. This one ought to be easy. A motion for summary judgment (dismissal) by defendants would present the co-op’s rules and an affidavit of facts (about the procedures that led up to the co-op boycott decision) which affidavit would support a claim that co-op had followed their own rules. Plaintiffs would either present a different version of the rules or an affidavit claiming (as sworn facts) that some different procedure had been followed. If either the rules evidence or affidavits as to facts differ sufficiently there’d have to be a trial. If the two sides are agreed enough as to facts, the court might be able to decided to dismiss the case just “off the papers”. Remember that the affidavits are sworn statements of fact and subject the signers to penalties for perjury. So they might agree.

    But other SLAPP suits might turn on more difficult-to-(dis)prove assertions and such lawsuits could go on for a long time, expensively, as lawsuits tend to do. Lawfare is no joke, and deep-pockets to promote lawsuits is important and dangerous. StandWithUs seems to have borrowed or “put up” $400,000 at some stage and may face other costs. But the anti-SLAPP $10,000 and defendant’s attorney’s fees have been removed from those potential costs.

    — Peter

  12. piotr
    June 1, 2015, 6:51 pm

    Some plaintiffs complained that BDS has nothing to do with the mission of the Coop. However, the coop has this as a part of its mission:
    http://www.olympiafood.coop/food-justice/anti-oppression/
    One can argue that food produced on land obtained through dispossession of the natives entails oppression, and I guess some arguments of that kind were made. Most importantly, it is only natural that most of 24 thousand active members would be against oppression, and against pro-oppression slogan “stand with the civilized man” (or join us at the Grim Rippers Squad and mow the grass).

  13. kma
    June 3, 2015, 9:57 pm

    this judge is clearly an “activist judge” and a zionist. the decision is full of bizarre claims that anti-SLAPP laws are unconstitutional, while at the same time saying flat out that the co-op did violate its procedures by not consulting its staff.
    if it were true that the entire problem were that the co-op failed to ask the staff, it would have been decided long ago.
    this decision goes to great creative lengths to distinguish between the legitimacy of a summary judgment where (it claims) all facts are known (jury trial only, it says) and an anti-SLAPP judgment where it is merely guessed that the plaintiff will not prevail. both cases are the job of a judge, and anti-SLAPP laws exist to protect free speech from false litigation. the judgment does not say that the litigation isn’t about free speech – in fact, the entire point is that it is, or else anti-SLAPP laws would not be relevant.
    the examples given are cynical at best – one involving ancient crap where the NLRB couldn’t prevail against an employer (even though they won on all arguments) because they could not prove that the employer didn’t have some legitimate complaint… which is the REASON for anti-SLAPP laws.
    so this judge is getting kudos from the zionist camp, but has put forth a really biased and bullshit argument against anti-SLAPP laws. what a thing to hang your hat on.
    so, Washington will either just throw the bums out and hopefully let the co-op recoup its costs based upon normal summary judgment, or it will battle to revise its anti-SLAPP laws only slightly to conform to California’s. they can’t decide that anti-SLAPP laws are unconstitutional. they’re not.

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