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Pebble's apology in court settlement rings hollow

  • Author: Shannyn Moore
  • Updated: June 29, 2016
  • Published September 14, 2014

These past few weeks have been bad ones for the Pebble Partnership and its attorneys.

Here's the statement issued last week by Pebble Limited Partnership, the Pebble Mines Corp. and Jermain, Dunnagan & Owens, their law firm, the defendants, and the Renewable Resources Coalition, the plaintiffs, in a long-running lawsuit.

The "Renewable Resources Coalition and Pebble Limited Partnership have today announced a settlement of their litigation pending in Los Angeles. In that litigation, Renewable Resources Coalition alleged that Pebble had unlawfully purchased its confidential records and information from its former fundraiser and used that information as the basis of a publicity campaign and in legal proceedings against RRC. As part of the settlement, Pebble apologized to Renewable Resources Coalition. In addition, given the circumstances of the current status of the litigation, Pebble paid Renewable Resources Coalition a substantial sum to settle the matter."

For those of you who just arrived in Alaska, the Pebble Limited Partnership and the Pebble Mines Corp. are two multinational companies hoping to mine the headwaters of the world's richest sockeye run, in Bristol Bay. The RRC is trying to stop them. RRC's lawsuit finally forced the Pebble proponents to say they're sorry. They and their paid bullies at the law firm were forced to pay the anti-Pebble activists hundreds of thousands of dollars. All things considered, the Pebble people got off easy. They should have gone to jail.

Why? Because corporations shouldn't pay the former employees of their public policy opponents to get confidential, proprietary information. But if your mine plan is an environmental disaster in the making, I guess you feel compelled to be more ethically "flexible." When you don't have science on your side, an ethically challenged corporation's best strategy is apparently to smear its opponents.

Here's what happened. RRC hired Robert Kaplan of Los Angeles, a nationally known fundraiser for nonprofits, to raise money for its fight against Pebble. Kaplan turned out not to be very good at his job, so the RRC terminated his contract. A vengeful Kaplan then contacted a Pebble attorney, Matthew Singer of the prominent Anchorage law firm of Jermain, Dunnagan & Owens.

Singer and Kaplan met in Los Angeles on March 1, 2009. The next thing you know, Kaplan is handing over a fat stack of confidential communications between himself and his former employer. And Singer is giving Kaplan a check for $50,000, drawn on the law firm's client trust account.

Attorneys at Jermain, Dunnagan knew full well that Kaplan was prohibited from disclosing those confidential communications; one of the very documents they purchased and reviewed was RRC's contract with Kaplan. But that didn't stop them from paying him off.

In short order, Singer and others at Jermain, Dunnagan used Kaplan's documents to file a formal complaint, on behalf of their Pebble clients, with the Alaska Public Offices Commission, which oversees campaign spending. Their primary goal was to intimidate Bob Gillam, the wealthy Anchorage businessman who has been the principal funder of opposition to a Pebble mine (to the tune of tens of thousands of radio and television ads to date) and dissuade him from continuing to fight the mine.

They also wanted to smear the RRC so it would lose other sources of funding as well, and it worked. Because of the bad publicity surrounding the APOC case, RRC was informed that its largest funder would not be renewing an intended annual grant of $1.8 million.

Pretty tough to fight multinational mining companies willing to risk the headwaters of Bristol Bay when you have no money. Were it not for the determination and personal wealth of Bob Gillam, the opposition to the mine would have been buried long ago.

When the RRC sued them, Pebble and Jermain, Dunnagan brazenly argued they were justified in purchasing the confidential internal documents because they were actually "whistle-blowers" performing a public service. They defended themselves by invoking a California law intended to protect litigants serving the public interest.

Initially, the trial court agreed, dismissing the case and awarding them $30,000 in attorney's fees, which was far less than the $170,000 they originally requested. The judge found their attempt to bill $850 an hour for 307 hours of legal work ridiculous, saying, "We stormed the beaches of Normandy and took Berlin in less time than 307 hours."

Then things got really ugly for Pebble and Jermain, Dunnagan.

RRC appealed the dismissal of the case to the California Court of Appeals, which reversed and reinstated it. The appeals court found that the "whistle-blower" statute did not protect Pebble's and Jermain, Dunnagan's bad conduct in paying an individual to obtain confidential internal documents to use against the RRC. The California Supreme Court upheld that decision. Once they were finally faced with going to trial, Pebble and its attorneys decided to settle.

Singer, the apparent architect of the transaction, has left his former law firm but remains a member in good standing of the Alaska bar. After the announcement of the settlement, I called to ask the bar association if its ethics committee was OK with Singer's conduct. I was told I could personally file a complaint. The Bar representative didn't mention that Singer currently sits on the Alaska Bar's Discipline Committee, the group that handles bar complaints. I trust that you're as comforted as I am that Singer continues to help set the ethical standards for Alaska lawyers.

These days Singer is representing the Alaska Fisheries Conservation Alliance, the people trying to ban setnet fishing in Cook Inlet. You know, to protect the king salmon.

Kaplan himself has been financially ruined. He faces a judgment of $4.5 million for the malicious actions induced by Pebble's payment.

Did your mom ever make you say you were sorry for something you really weren't sorry for? That's basically what happened to Pebble in this case. They're sorry -- in legalese -- that they paid off a former fundraiser and hurt the Renewable Resources Coalition. In reality, they're simply sorry they got caught and that Bob Gillam had the money and stamina to hold them accountable.

Shannyn Moore is a radio broadcaster.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com

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