Greenpeace Anti-SLAPP Suit Blocked by International Antisuit Injunction

This publish was written by Hannah Buxbaum, Martin Luther King Jr. Professor of Legislation, UC Davis Faculty of Legislation. The publish is cross-posted from the Transnational Litigation Weblog with form permission.

In 2019, Vitality Switch, the developer of the Dakota Entry Pipeline, sued Greenpeace Worldwide, a Dutch basis, in North Dakota state courtroom. Final yr, Greenpeace responded with an anti-SLAPP (Strategic Litigation Towards Public Participation) lawsuit towards Vitality Switch in Dutch courtroom. Within the newest twist on this prolonged dispute, the North Dakota Supreme Courtroom issued an antisuit injunction final week blocking (partially) that anti-SLAPP go well with.

The injunction is uncommon in two respects. First, it doesn’t truly bar Greenpeace from pursuing the Dutch motion; fairly, it purports to restrict the problems that Greenpeace can increase in that litigation. Second, it was entered after judgment had already been reached within the North Dakota lawsuit.

Background

In 2016, the deliberate development of the 1,000-mile Dakota Entry oil pipeline engendered vital and generally violent protests close to the Standing Rock Sioux Reservation in North Dakota. Greenpeace Worldwide was among the many many civil society organizations that advocated towards the pipeline challenge.

The U.S. Litigation

In 2019, Vitality Switch L.P. sued Greenpeace and its two U.S. associates, together with different environmental rights teams, in federal courtroom in North Dakota. Vitality Switch alleged that Greenpeace had engaged in felony exercise violating the Racketeer Influenced and Corrupt Organizations Act (RICO). It additionally requested the courtroom to train supplemental jurisdiction over a variety of further state legislation claims. This lawsuit was dismissed in its entirety for failure to state a declare—the racketeering claims with prejudice, and the state legislation claims with out prejudice.

Per week later, Vitality Switch filed a second lawsuit in North Dakota state courtroom alleging defamation, tortious interference with enterprise, and conspiracy beneath state legislation. On March 19, 2025, a jury discovered Greenpeace liable, concluding that it had supported the protests that delayed development of the pipeline. It awarded Vitality Switch greater than $650 million in compensatory and exemplary damages. In February 2026, the trial courtroom finalized the judgment in Vitality Switch’s favor, although it diminished the entire damages to $345 million. Greenpeace is at the moment in search of a brand new trial in that case.

The Netherlands Litigation

Greenpeace characterizes each the proceedings in North Dakota federal courtroom and the proceedings in North Dakota state courtroom as SLAPP fits. It contends that Vitality Switch filed these claims in an effort to block Greenpeace from exercising its proper to take part in public debate relating to the pipeline. In July 2024, it despatched Vitality Switch a discover of legal responsibility stating that the U.S. litigation constituted an abuse of its rights beneath Dutch and EU anti-SLAPP legislation. It demanded that Vitality Switch withdraw its U.S. claims towards Greenpeace and “settle for legal responsibility and duty for cost of all harm (together with prices)” that Greenpeace suffered because of the proceedings.

Vitality Switch didn’t agree to those calls for, and in February 2025, shortly earlier than trial started within the North Dakota case, Greenpeace filed a summons initiating litigation within the District Courtroom of Amsterdam. It seeks compensation for prices and damages, together with reputational harm, and a declaratory judgment that Vitality Switch acted tortiously and abused Greenpeace’s rights by commencing the U.S. lawsuits.

Greenpeace’s go well with within the Netherlands invokes the EU’s Anti-SLAPP Directive, which entered into drive in Could 2024. The purpose of the Directive is to guard journalists and civil society actors from “manifestly unfounded claims or abusive courtroom proceedings” initiated in an effort to chill their participation in public debate.

Whereas the Directive’s main goal was to handle SLAPP fits initiated in European courts, it particularly acknowledges and seeks to mitigate the specter of SLAPP fits introduced in courts outdoors the EU towards EU-based defendants. First, it contains an anti-enforcement provision (Article 16), which gives {that a} judgment rendered towards an EU resident by a non-EU courtroom could be denied recognition and enforcement if the international proceedings are deemed “manifestly unfounded or abusive beneath the legislation of the Member State during which recognition or enforcement is sought.”

Second, it creates a jurisdictional foundation for claims initiated by an EU individual focused by a third-country SLAPP go well with (Article 17). Within the case of abusive proceedings, such an individual “could search, within the courts or tribunals of the place the place that individual is domiciled, compensation for the harm and the prices incurred in reference to the proceedings earlier than the courtroom or tribunal of the third nation.” Such claims could be initiated earlier than a call has been rendered or change into last within the international continuing.

Though the deadline for EU member states to implement the Directive inside their nationwide authorized methods has handed, it has not but been absolutely transposed throughout the EU. However, the Dutch Ministry of Justice and Safety has said that Dutch non-public worldwide legislation already permits the train of jurisdiction in anti-SLAPP claims involving a third-country continuing. Greenpeace’s anti-SLAPP claims towards Vitality Switch are based mostly on Dutch civil legislation.

The Antisuit Injunction

5 months after Greenpeace initiated its lawsuit in Amsterdam—and after the North Dakota state lawsuit had resulted in a jury verdict towards Greenpeace—Vitality Switch filed a movement within the North Dakota courtroom in search of an antisuit injunction prohibiting Greenpeace from continuing with the Dutch anti-SLAPP go well with.

Whether or not and beneath what circumstances a state courtroom could subject a world antisuit injunction was apparently a matter of first impression in North Dakota. Given the dearth of precedent, the state district courtroom turned for steering to federal legislation on the issuance of such injunctions. (Oddly, it relied not on Eighth Circuit precedent, however on a district courtroom choice from one other circuit.) The framework it selected laid out a three-step evaluation, requiring the courtroom to contemplate:

(1) Whether or not the events and points within the U.S. continuing and the international continuing are the identical;

(2) Whether or not the international litigation would (a) frustrate a coverage within the enjoining discussion board; (b) be vexatious; (c) threaten the enjoining courtroom’s in rem or quasi in rem jurisdiction; or (d) prejudice different equitable issues; and

(3) Whether or not ideas of comity counsel towards an injunction.

Making use of this framework, the district courtroom denied Vitality Switch’s movement for an antisuit injunction. Vitality Switch then petitioned the North Dakota Supreme Courtroom for supervisory overview. That courtroom granted overview and concluded that the district courtroom had abused its discretion by misapplying the authorized framework. Following the identical framework, it concluded that an antisuit injunction was justified.

Though the North Dakota Supreme Courtroom grappled with the challenges introduced by anti-SLAPP litigation, the courtroom’s evaluation didn’t adhere very carefully to the check it presupposed to undertake.

Threshold Query: Identification of Points

As a threshold matter, the social gathering in search of an antisuit injunction should set up that the problems at stake within the international continuing and the U.S. continuing are considerably the identical, such that the end result of the latter would eliminate the previous. That was not the case right here. Because the district courtroom had acknowledged, whereas the 2 proceedings arose from the identical actions, they raised completely different points.

The core of the Dutch continuing was a declare that was not at subject within the U.S. continuing, since North Dakota legislation doesn’t have an anti-SLAPP legislation. Furthermore, the Dutch lawsuit concerned allegations that Vitality Switch had defamed Greenpeace, based mostly largely on statements the corporate made in and in reference to the failed RICO litigation. The query of defamatory conduct by Vitality Switch was not at subject within the North Dakota continuing, since Greenpeace had made no counterclaims there.

The state Supreme Courtroom however concluded that the problems had been “considerably related,” holding that the brink requirement had been met. Nevertheless—presumably recognizing that its judgment wouldn’t the truth is eliminate the Dutch continuing—it supplied a “narrowly tailor-made” injunction that left Greenpeace free to pursue claims premised on “issues the North Dakota proceedings didn’t adjudicate.”

Equitable Components and the Position of Comity

Following the district courtroom, the Supreme Courtroom indicated that it was adopting the conservative strategy to antisuit injunctions, which views worldwide comity as a major issue weighing towards the issuance of such injunctions. Even beneath that strategy, nevertheless, courts are usually keen to enjoin “interdictory” international proceedings whose purpose is to preclude or intervene with the adjudication of a declare in U.S. courtroom.

On this case, the courtroom characterised the Dutch motion as vexatious, stating that it was filed after the North Dakota case had been ongoing for greater than six years and “on the eve of trial.” (It’s price declaring that Greenpeace despatched a discover of legal responsibility the earlier yr, after the EU Directive entered into drive.) However, because the district courtroom famous, it’s arduous to see how the Dutch motion might have truly blocked or interfered with the North Dakota continuing, which had already proceeded via trial on the time the injunction was sought.

Courts adopting the conservative strategy are additionally keen to enjoin international proceedings that violate an necessary public coverage of the discussion board. Invoking this doctrine, the North Dakota Supreme Courtroom voiced its core objection to the Dutch go well with:

North Dakota gives an orderly course of for difficult an adversarial verdict—post-trial motions and overview on this Courtroom… . [Greenpeace]’s Dutch motion seeks a declaration that the North Dakota case was “manifestly unfounded and abusive” and calls for damages designed to offset the jury’s verdict. If profitable, the Dutch motion would contradict and offset the decision, functionally nullifying it. This isn’t a authentic parallel motion. It’s an assault on a basic coverage of this state.

At this level, nevertheless, judgment in Vitality Switch’s favor has already been entered within the North Dakota continuing, triggering the precept of res judicata. Except and till a brand new trial is granted or that judgment is overturned on enchantment, one would count on the Dutch courtroom to contemplate that when assessing Greenpeace’s claims that the North Dakota proceedings had been “manifestly unfounded or abusive.” (As recital 29 of the Directive signifies, if the claimant within the international proceedings “pursues claims which can be based, such proceedings shouldn’t be thought to be abusive.”) Issuing an antisuit injunction that not directly takes that call out of the arms of the Dutch courtroom would appear inconsistent with the idea of worldwide comity.

Conclusion

The North Dakota Supreme Courtroom in the end ordered the district courtroom to enter a “narrowly framed” antisuit injunction. This injunction will bar Greenpeace “from pursuing any declare within the Dutch motion whose parts require, as pleaded, a discovering that the North Dakota case lacked authorized basis—together with any declare premised on the ‘manifestly unfounded’ commonplace” of the EU Directive.

Nevertheless, the injunction is not going to bar Greenpeace from asserting different claims within the Dutch litigation. Particularly, it will not bar claims “premised on Vitality Switch’s dismissed federal RICO go well with and on alleged out-of-court defamatory statements—issues the North Dakota proceedings didn’t adjudicate.”

In a way, this measure undermines worldwide comity much more than a complete antisuit injunction would. Its impact is to allow the international continuing to proceed whereas making an attempt to regulate the set of points the international courtroom can take into account.