A judge has ruled that a $3 million defamation suit by the company proposing to dredge Utah Lake was filed for the improper purpose of preventing a Utah scientist from engaging in public debate on the controversial project.
Following a two-day hearing that ended Wednesday, 3rd District Judge Laura Scott threw out the suit filed by Lake Restoration Solutions (LRS) against Brigham Young University ecology professor Ben Abbott, concluding the scientist’s negative statements about the company were factually sound.
Since the project’s unveiling five years ago, Abbott has been a leading critic of the proposal to raise up to 20,000 acres of artificial islands, which he and others say is not grounded in science and could further degrade the lake.
The largest freshwater lake wholly within Utah, Utah Lake has been overrun with invasive species and algal blooms thanks to a century of dumping and neglect. LRS claims its project would reverse the lake’s environmental problems and provide numerous other benefits, like improved and safer navigation, miles of new shoreline for the public to enjoy and increased water storage.
In a suit filed a year ago in Salt Lake City, the company claimed Abbott’s criticisms — posted on his website, written in letters to various officials and presented at public meetings — strayed into deliberate falsehoods aimed at turning the public against the project.
Ultimately, the Utah Department of Natural Resources turned down LRS’s proposal, which resulted in a lawsuit against the state.
Abbott’s most damaging assertions were claims that LRS had no PhD-level scientists on its team and its funding came from “shady” foreign sources in Dubai, according to LRS’s attorney David Jordan. Other defamatory remarks included statements about the portion of the lakebed the project would privatize and about the company’s public investment offerings filed with the Securities and Exchange Commission (SEC).
“When you [Abbott] say that, in order to have a safe process that has legitimacy, you must assemble a team of researchers, engineers and legal experts. And, then to say there are no such people associated with this project is defamatory. Why? Because it’s calculated to injure the reputation of the organization,” Jordan argued.
Scott, however, rejected LRS defamation suit as a matter of law and is expected to order the company to cover Abbott’s legal expenses.
“The statements were either substantially true, even though there may have been minor inaccuracies, or the gist or substance of the statements was true,” Scott said. “Even if those statements were false, they were not capable of sustaining a defamation claim.”
She also dismissed LRS’s related claims that Abbott statements put the company in a “false light” and interfered with its business arrangements.
The judge then pivoted to Abbot’s countersuit alleging LRS’s defamation case was brought in bad faith to silence him.
Abbott’s lawyer Whitney Krogue asked the judge to rule the company’s action functioned as an impermissible Strategic Lawsuit Against Public Participation, or SLAPP, considered an abuse of the judicial system aimed at inhibiting debate on matters of public interest.
“This is shown as well in the communications between LRS and its consultants. When Professor Abbott’s opposition to the project started to gain traction, their plan was to search through his statements and find anything that they could claim to be false and sue Professor Abbott for those statements in order to intimidate him into silence,” Krogue said. “Our First Amendment protections mean that you can’t go out and sue someone who opposes you on an issue of public concern and an issue that is before the public and state governing bodies and do so on such flimsy facts and evidence as LRS has tried to provide here.”
She argued many of Abbott’s offending statements were based on LRS’s own representations.
“There are substantial records in the public domain of LRS representatives saying that they had foreign funding from Dubai, and yet LRS filed this lawsuit against Professor Abbott suing him for millions of dollars for repeating that same statement,” she argued.
But Jordan took issue with Abbott characterizing the company’s funding sources as “shady,” which in this context infers corruption.
“It is highly offensive to suggest you have affiliated with corrupt people funding your project,” he said.
But Judge Scott was not swayed.
“‘Shady’ is not a statement that’s capable of a determination as to truth or falsity. It’s an opinion,” she told Jordan. “Under the law, it’s clear that ‘shady’ is an opinion and having it attached to foreign funding from Dubai, which appears to be a substantially true statement that, at some point in time, LRS was seeking foreign financing.”
She acknowledged Abbott’s use of the word “shady” gave her some pause, but said determining the rest of his statements were OK was a no-brainer.
“I don’t think any of the other statements are even close to sustaining a defamatory meaning,” she added. “We can respectfully disagree. I recognize that an appellate court is likely to weigh in on it.”
Scott found many statements Abbott was sued for were not even harmful to LRS’s reputation.
“Whether 15% of the lake is covered by islands or 12%, or 10%. I don’t know how that’s defamatory,” she said. “This representation regarding the SEC filing. LRS didn’t go public, but it made an offering. It offered $15 million in private securities and it sold $200,000. I don’t see how that misunderstanding or that misrepresentation of the offering of a private security versus going public is capable of sustaining defamatory meaning.”
While the judge determined the LRS suit lacked a legal basis, Scott said Abbott’s lawyers had not met the “clear and convincing” legal standard to award compensatory damages under Utah’s anti-SLAPP laws. That aspect of Abbott’s dispute with LRS has factual issues that can only be sorted out by a jury, she ruled.