19 thoughts on “Wednesday Open Thread”

1. SLAPP Update 

   Some of you may recall that nearly two years ago I was hit with a frivolous lawsuit, a "Strategic Lawsuit Against Public Participation," apparently because I upset a Texas oil and gas company that holds leases and is drilling in the upper North Fork Valley. 

   Judge rules in favor of Kolbenschlag in SGI’s SLAPP suit

   The most recent ruling in my favor is from the District Court that dismissed the libel claim against me in June, awarding my attorney fees and finding the SLAPP action taken against me both frivolous and vexatious. The case remains under appeal, by SGI. 

   Following are some excerpts from the judge's recent decision.

   “Ultimately, to suggest that an ordinary reader may disregard established facts because the underlying legal claim was not proven at a final trial does a disservice both to the ordinary reader and to undisputed facts in general. It is sophistry dressed up as a legal principle. It may well be that there are individuals out there who will disbelieve anything they hear, especially where the federal government is involved. The Court does not make its decisions based on such outliers. The Court concludes again that any ordinary reader looking at the operative facts set forth in the federal litigation would have a far worse view of SGI then he or she would have after reading the Defendant’s statement that SGI had been “fined” for collusion with GEC.

   “… the Court concludes that the Defendant has adequately demonstrated that the plaintiff commenced and prosecuted the libel action for an improper purpose. In part, that conclusion follows from the Court’s finding that the claim was baseless and that SGI was or should have been aware of that fact before it commenced the lawsuit. The Court also believes that SGI continued to prosecute the claim even after its lack of merit became apparent.

   “…The Court is particularly troubled by the Plaintiff’s explanation for its different treatment in suing the Defendant for libel while taking no such action against the news organizations, industry professionals and legal commentators who described the settlement of the federal case as including the payment of fines by SGI.

   “… The Plaintiff has no further evidence of actual malice on the part of the Defendant here than it would have had against any other party who described the settlement payments the same way. As for the suggestion that the Defendant should be held to a higher standard based on his knowledge of the industry, that same consideration would apply to the numerous industry insiders and legal commentators who allegedly mischaracterized the nature of the underlying payments.

   “Ultimately, the only difference the Court sees between the Defendant and all of the other parties who used similar terms to describe the settlement is that the Defendant is a frequent industry critic, who has lobbied against SGI’s operations. Commencing and maintaining a lawsuit as a form of retaliation or to silence a critic is a clear example of vexatious litigation.”

   SLAPP actions are a growing threat to Free Speech, as powerful corporations seek to stifle community engagement and citizen action. The Colorado Freedom of Information Coalition noted in its blog post about the most recent ruling: 

    

   “Commencing and maintaining a lawsuit as a form of retaliation or to silence a critic is a clear example of vexatious litigation,” [Judge] Schultz wrote.

   

   Pete Kolbenschlag (photo courtesy of Pete Kolbenschlag)

   The type of lawsuit filed against Kolbenschlag is often called a SLAPP, short for strategic lawsuit against public participation. Used by some to attack First Amendment rights, they have become “an all-too-common tool for intimidating and silencing critics of business, often for environmental and local land development issues,” according to the Reporters Committee for Freedom of the Press.

   Several states, but not Colorado, have enacted anti-SLAPP statutes designed to let a defendant seek dismissal at an early stage of the proceeding and possibly recover legal fees.

   SG Interests sued Kolbenschlag for writing, in the comments section of a Nov. 28, 2016, Post Independent article that the company had been “fined for colluding (with Gunnison Energy Corporation) to rig bid prices and rip off American taxpayers.”

   I must thank my attorney, Steve Zansberg, and all the hundreds of people that have supported me, donating to my legal defense fund, sharing my story, giving me encouraging words. I wish I could say it was over, but I appreciate the strong defense on my behalf, and the solid decisions thus far from the Court. 

    

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   1. GREAT job, Pete.  IIRC correctly, didn't Proud Pear once lecture you this was an exercise in futility?

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      1. And Roger has some expertise when it comes to exercises in futility.

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   2. Great outcome! Last I checked, Colorado didn't have a specific anti-SLAPP statute. From the judge's language, it looks as though the attorney fees award was based on C.R.S. 13-17-102, a statute authorizing fee shifting in cases involving frivolous, groundless and/or vexatious claims or defenses. Is that the case?

      Anyhoo, good luck on appeal. The Colorado Court of Appeals bends over backward to find ways of affirming trial court rulings, especially in civil cases, so there's that. 🙂

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      1. Yes, the judge found it to be a twofer, both frivolous AND vexatious 

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         1. That's a very good outcome.  And Zansberg is an excellent attorney to have, especially in this arena.  Cheers to you and hope the success continues through the COA.

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   3. You arey hero!

       

       

      I'm vexed all the ttme- never occurred to me it could be actionable or compensable

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2. I just wrote a long comment and when I made one minor edit it got flagged as spam. 

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   1. Sorry about that, we pulled it out of the filter for you.

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      1. I had the same thing happen twice last night on a response to The Realist. 

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3. Comment deleted. Duplicate.

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4. Congratulations, Pete Kolbenschlag. 

   Maintaining free speech and finding a way to beat a SLAPP case is a fine effort. Wishing you continued success, and your attorney continued success in being awarded fees as long as the corporation wants to maintain the legal action.

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5. How FiveThirtyEight’s 2018 Midterm Forecasts Did

   Props to 538 for doing a reflective and detailed, "Where did our model go wrong?" even though they were very close to right this time. Their bottom line, "Hey, we look better than we are due to luck and accurate polling. The problem of figuring out when an error is just a normal exception and when it indicates that everyone has made an error still exists."

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   1. I really appreciate 538's careful use of statistics. Nate Silver did explain in this piece that success needs to be measured against their estimates for elections that are within 10 pts, rather than those where the winner was 95% predicted. 

      Here's an example of good average predictability, but low utility:

      90% of the time tomorrow's weather will be the same as today's. However, that isn't very useful because we really want to know with some accuracy wether the weather will be different tomorrow,

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   2. Their model failed more on election night while trying to predict actual results based on reported votes than anywhere else. People watching 538 on election night were highly stressed as a result.

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6. So much #winning.  I'm sorry, did I just roll my eyes out loud?

   Ag Economist: Farm economy slump could last until 2027

   …to get to the good times, growers will have to make it through the current downturn in the farm economy, which has not been helped by the current trade wars the United States is engaged in. Basse predicted U.S. net farm income would be depressed into 2027.

   “I’m not saying we lost our market in China forever, but it will take some work to get it back,” he said. “At the same time, our competitors in South America have been working to secure larger shares of it, so that will happen going forward.” The Chinese, for their part, are moving to “a leaner ration” containing more corn and wheat and less soybeans, he said.

   “We think it’ll be two or three years before this whole trade war has really reverberated through the U.S. farm community, and we can look at a future then that is more reliable and bright compared to where we are today,” Basse said. “The farmer just needs to be prepared to be around for the good times, which will come but are still a couple years off."

   In other T***p news, he dropped a (trade) bomb on Air Force One on his way back from the G20

   Trump’s threat to nix NAFTA adds big threat to ag

   President Donald Trump, while talking to reporters aboard Air Force One this weekend, dropped a trade bomb few were expecting: He said he planned to officially notify Mexico and Canada that he will pull the U.S. out of the North American Free Trade Agreement, giving Congress six months to ratify his new trade pact or suffer the consequences.

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   1. I was chasing some info, and sadly came across the end of November update on farm income.

      Farm Sector Profits Expected To Decline in 2018

      …. Inflation-adjusted net cash farm income is forecast to decline $10.9 billion (10.5 percent) from 2017 to $93.4 billion, which would be the lowest real-dollar level since 2009. Net cash farm income encompasses cash receipts from farming as well as farm-related income, including government payments, minus cash expenses. Net farm income is a more comprehensive measure that incorporates noncash items, including changes in inventories, economic depreciation, and gross imputed rental income of operator dwellings. [my emphasis]

      So much @winning, indeed…

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      1. I would think Colorado Senators would want to address that by removing g tarrifs

          

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7. I would think Colorado Senators would want to address that by removing g tarrifs

    

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