The peculiar candidacy of Nancy Koppelman
Just when you thought the ongoing lawsuit against the Olympia Food Co-op couldn’t get any stranger, one of the participants in the lawsuit on behalf of the plaintiffs is now running for the Co-op board of directors.
Nancy Koppelman recently declared her candidacy to the board, stating her interest “in helping the co-op continue to serve the greater Olympia community.” Yet on November 30, 2011, Koppelman signed and submitted a legal declaration in support of the lawsuit to the Thurston County Superior Court. In the declaration, she stated that the lawsuit filed against sixteen former and current Co-op board members and staff “’fairly and adequately’ represent … Co-op members” such as herself, who “support the Plaintiffs in their lawsuit against the Defendants.”
If Koppelman is elected, she will be leading an organization she is involved in suing, and will be working with board members and staff who are defendants in the case. Ironically, three of the five plaintiffs in the suit ran for the board of directors in 2010 and filed their lawsuit after losing the member-wide vote.
Koppelman also stated in her 2011 declaration that she “no longer shop[ped] at the Co-op.”
The significance of the Koppelman declaration
Far from being a simple letter of support, Nancy Koppelman’s legal declaration was part of the plaintiffs’ strategy. The plaintiffs had claimed they were filing the suit “derivatively”—on behalf of the entire Co-op membership. Koppelman’s declaration was filed to support the claim that the lawsuit “fairly and adequately represent the interests” of the Co-op members.
Thus when the five plaintiffs lost the case and were faced with a $160,000 penalty, they used the supposed derivative nature of the lawsuit as a defense. They suggested that since they had filed their lawsuit on behalf of the Co-op (as affirmed by Koppelman), the penalty should be incurred not by the plaintiffs, but by the Co-op itself: “any such penalties and fees must be assessed against the ‘real party in interest’; i.e., OFC [the Olympia Food Co-op].”
By filing her legal declaration, Nancy Koppelman was claiming the Co-op membership collectively supported the lawsuit against Co-op board and staff, and by extension gave support to the claim that the Co-op itself should pay the $160,000 fine incurred by the five plaintiffs.
Furthermore, Koppelman’s declaration that the Co-op board had acted “unlawful[ly]” contradicted an earlier letter to the board, dated September 10, 2010, in which she encouraged the board to stop “holding up the letter of the bylaws” with the boycott and instead acknowledge when “the letter of the law was wrong.” She compared the Co-op board members to “slave-owners” who “justified ownership of human property” by “follow[ing] the letter of the law.”
That is, in 2010, Koppelman claimed that the Co-op bylaws that led to the Israel boycott were immoral and were being followed too closely. Yet a year later, she submitted a declaration to the Superior Court claiming that the boycott was implemented in violation of the same bylaws.
A brief history of the lawsuit against the Olympia Food Co-op
On July 15, 2010, the Olympia Food Co-op board of directors approved a working-member request to honor the boycott of Israeli products in compliance with the Co-op’s boycott policy until Israel complied with international law. The request was made as part of an international nonviolent movement known as BDS (boycott, divestment, and sanctions), fashioned after the global anti-apartheid movement.
In response, local opponents to the boycott, partially assisted by a multimillion-dollar pro-settler organization known as StandWithUs, waged a series of attacks against the Co-op. Although their primary argument was that the boycott implementation had lacked “process,” boycott opponents circumvented process and attempted to overturn the boycott by staging protests, encouraging a boycott of the Co-op, harassing Co-op staff, and eventually submitting a vague petition. Although boycott opponents claimed to represent the majority, they refused to initiate a member-wide vote on the boycott even when asked to.
Months later, several boycott opponents ran for the Co-op board of directors, all of whom lost by a wide margin in the largest member-wide vote in Co-op history.
On March 10, 2011, Olympia boycott opponents secretly hosted a meeting with StandWithUs coordinators from the Seattle area and Israeli Consul General Akiva Tor from San Francisco. Also present was Avi Lipman, a Seattle attorney who would soon represent the plaintiffs in the Co-op lawsuit. There, according to StandWithUs meeting minutes, a “presentation of [a] legal case” was given.
Later that day, Akiva Tor denied that the meeting had taken place. Avi Lipman did confirm existence of the meeting but refused to discuss it, citing attorney–client privilege. The agenda for a StandWithUs meeting that was published on July 27, 2011, two months before the lawsuit was filed, referred to “the law suit [sic] against the Olympia Food Co-op” as a StandWithUs “project.”
On May 31, 2011, the five future plaintiffs sent a letter to several current and former Co-op board members and staff, threatening them with a “complicated, burdensome, and expensive” lawsuit unless “you do what we demand” and rescind the boycott. Yet the grounds for the suit were ambiguous: According to the letter, the Co-op board had “violated the terms of a number of OFC’s governing documents—most obviously, the OFC ‘Boycott Policy.’ Other rules and regulations that were violated include OFC’s Mission Statement and Bylaws,” but not elaborated. Moreover, stated the letter, “we are continuing to investigate and conduct further analysis.”
Around the same time, the future plaintiffs starred in an anti-BDS propaganda video produced by StandWithUs. StandWithUs was also producing pro-settler videos on behalf of the Israeli Ministry of Foreign Affairs, which was then headed by the racist far-right settler Avigdor Lieberman.
On September 2, 2011, Kent Davis, Linda Davis, Jeff Trinin, Susan Trinin, and Susan Mayer filed their lawsuit against sixteen former and current Co-op board members and staff, citing “irreparable injury.”
Susan Trinin and Linda and Kent Davis were board candidates in 2010 who had lost. Although the plaintiffs claimed they were suing the Co-op board on behalf of the Co-op collective, court documents filed by the defendants revealed that Kent Davis had not been a member of the Co-op until after the boycott had been implemented.
The plaintiffs were represented by Seattle attorneys Avi Lipman and Robert Sulkin. Sulkin, along with his wife, had previously participated in StandWithUs activities and had raised money for Israeli soldiers.
Amid accusations that the Israeli government was involved in the Olympia lawsuit, a reporter for the Israeli TV news program Tzinor Layla asked Israeli Deputy Foreign Minister Danny Ayalon if it was true. Ayalon responded: “It is very important to make use of every means at our disposal, mainly legal means … And it’s true, we are using this organization, StandWithUs, to amplify our power.”
The defendants were represented by attorneys from the Center for Constitutional Rights, the National Lawyers Guild, and the law firm of Davis Wright Tremaine. The latter firm had helped draft Washington State legislation to prevent frivolous lawsuits designed to stifle free speech, known as SLAPP (Strategic Lawsuits Against Public Participation). The defense team filed a motion to dismiss the lawsuit under this anti-SLAPP legislation, and that motion was granted on February 27, 2012. Thurston County Superior Court Judge Thomas McPhee found that the plaintiffs had failed to “prove by clear and convincing evidence a probability of prevailing on the claim.” In accordance with the anti-SLAPP law, McPhee fined the plaintiffs $160,000 ($10,000 per defendant).
The plaintiffs filed an appeal to the State Supreme Court on August 10, 2012. On August 6, 2013, the Supreme Court refused to hear the case and remanded it to the Court of Appeals, where it awaits today.
A history of “lawfare”
Surprisingly, the ongoing farcical nature of the lawsuit against the Co-op is not unique in the battle over the Palestine/Israel conflict. Proponents of the Israeli government, with the support of the government itself, have pursued a strategy of “lawfare,” with the intention of shutting down criticism of Israel—if not in the court of public opinion, then in the court of law.
In February 2011, the same year that the Co-op lawsuit was filed, five people initiated a class action lawsuit against former president Jimmy Carter and his book publisher over the publication of Palestine: Peace Not Apartheid. The plaintiffs, who claimed to be innocent book purchasers, accused the defendants of “deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its [sic] purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is.”
The plaintiffs were represented by a board member of the right-wing Zionist Organization of America (ZOA). The previous year, the ZOA helped convince the US Department of Education to broaden its interpretation of Title VI of the 1964 Civil Rights Act to include Jews as a potentially discriminated class. The purpose was not to fight anti-Semitism, but rather to apply Title VI complaints to stifle criticism of Israel on college campuses. Since then, Israel-based Title VI complaints filed against Barnard College and the University of California campuses in Irvine, Berkeley and Santa Cruz have been dismissed. The Berkeley complaint was filed after a judge had earlier thrown out a lawsuit on the matter.
According to a StandWithUs meeting agenda, a Title VI complaint was considered against The Evergreen State College in 2011, but it was never realized, perhaps because news of StandWithUs’s involvement had leaked before it had gotten further. Prior to that, StandWithUs had funneled thousands of dollars to Evergreen students and student groups, hoping to alter the academic landscape of the college to its advantage. Representatives of the Israeli government had also contacted the Evergreen administration to attempt to narrow the parameters of academic discussion around Israel.
And in July 2011, the Israeli Knesset made it a punishable offense to promote boycotts against Israel and Israeli settlements, severely curtailing speech rights in Israel.
Yet the involvement of the Israeli government in such cases—and especially in the lawsuit against the Olympia Food Co-op—underscores the values of grassroots tactics such as boycotts where other methods have failed.
Phan Nguyen helped organize support for the Co-op’s boycott as part of Olympia BDS. He has since reported on the Co-op lawsuit for Mondoweiss and Alternet. The reports can be found at http://bit.ly/yeUYLw and http://bit.ly/zfrlf3.