With the controversial documentary Bananas!*finally getting its official US premiere, in New York, 8 May, 2011, we republish here our editorial from Film International 41, vol. 7, no. 5, 2009, which sums up the story, up until that time, of the multinational Dole corporations lawsuit against the filmmakers. For an update on recent events, please visit the film’s website.
SLAPP stands for Strategic Lawsuit (or Litigation) Against Public Participation. It’s a useful tool within the American legal system for major corporations wishing to intimidate and silence critics by burdening them with legal costs. The aim of the plaintiff is not foremost to win the lawsuit, but to exhaust the defendant financially and emotionally, and in the meantime scare others off from participating in the debate. On July 8, Dole Food Company filed a defamation suit bearing all the trademarks of a SLAPP against Swedish documentary filmmaker Fredrik Gertten and his producer, Margarete Jangård, in an attempt at stopping their film, Bananas!*, from reaching its audience.
Bananas!* tells the story of a trial that took place in Los Angeles in 2007. Twelve Nicaraguan banana workers sued Dole for exposing them to a pesticide, DBCP, known to be causing male sterility. Six of them were awarded several million dollars in damages by a jury, whilst the other six were given nothing. The main figure of the film is Juan ‘Accidentes’ Dominguez, a flamboyant Cuban-American lawyer representing the workers. The film was completed in December 2008 and scheduled to premiere at the Los Angeles Film Festival (LAFF) in June as a competitor for the $50,000 prize for best documentary. However, during the Spring of 2009 Dole succeeded in having two similar cases dismissed, arguing that all but one of eleven plaintiffs had never worked on banana plantations and that the plaintiffs were paid and coached by their attorneys, including Dominguez. Judge Victoria Chaney, who ruled in favour of Dole, said that the fraud may have connections to the previous case, but did not generally exclude the possible merit of other claims against the company. The ruling relied largely on evidence given by secret, ‘John Doe’, witnesses. Dominguez and the Nicaraguan workers denied any wrongdoing. Shortly after the trial Chaney was appointed to a position on a state appellate court by Governor Schwarzenegger, a major recipient of campaign funding from Dole (Rivera 2009).
Whilst Dole has appealed the 2007 verdict following the Chaney ruling, the workers maintain their right to damages and, through their new attorney, Steve Condie, criticize the secretive proceedings of the 2009 trial (Kim and Zarembo 2009). The battle goes on. Dole, who made the Multinational Monitor’s list of ‘The 10 Worst Corporations of 2008’ for their treatment of Filipino pineapple workers (Weissman 2008), has in fact admitted to using DBCP in Central America after it was banned in the United States. As these trials are part of a series of lawsuits involving many thousands of Central American agricultural workers, the stakes are high. In 2002 the Nicaraguan Supreme Court ordered Dole, together with Dow Chemical and Shell, to pay $490 million in damages to 583 workers. The companies refused to pay and a Los Angeles judge ruled that the judgment could not be enforced in the United States due to a technicality. Several settlements out of court have also been made.
Bananas!*, despite being a David v. Goliath story, has been described by reviewers as ‘quite balanced, airing the opening and closing arguments of both sides’ (Debruge 2009) and as telling ‘Dole’s side of the story also… in that witnesses on the stand appear to be dissembling and attorney Dominguez, whose personal injury ads adorn L.A. buses, can be viewed as an ambulance chasing, Ferrari driving, anti-Castro Cuban’ (Rampell 2009). It also includes titles informing viewers of the Chaney ruling. Nevertheless, strengthened by the Chaney verdict Dole set out to stop a film that chronicles a trial they lost. In a letter sent to the filmmakers and the LAFF sponsors, Dole threatened legal action if the film was shown at the festival. That neither Dole nor their lawyers had seen the film at this stage lends credibility to the statements by director Gertten and the filmmakers’ attorney Lincoln Bandlow, that Dole simply don’t want anyone to see a film showing a prominent representative of Dole admitting in court that the company knowingly used the banned pesticide, but would prefer that all discussion of Dole’s use of DBCP ceases (Forsström 2009).
Bananas!* did premiere at the LAFF. However, fear of litigation caused the organisers to remove it from competition for both the documentary prize and the audience award. Before the screening a representative of the organisers also read a disclaimer described by Gertten as ‘almost saying this film is based on a lie’ (Hollywood Podcast #55). Gertten maintains that he simply ‘filmed… the truth and how this all played out during this trial’ and points to ‘hard evidence’ – a letter from Standard Fruit (now Dole) to the producers of DBCP, Dow Chemical – that proves the essential correctness of the accusations against Dole (Official website of Bananas!*). Gertten and his team defend their right to portray reality as they find it, even if this means taking a critical stance towards the Chaney ruling. As fellow documentary filmmaker Alex Rivera puts it, ‘documentarians play the most crucial role when they question the official story’ (Rivera 2009). Dole, on the other hand, seems to be intent on using their considerable financial power to prevent freedom of speech and make sure that every discussion of this issue, which involves thousands of workers and a series of trials, is entirely framed by the one verdict, signed Chaney, concerning a handful of plaintiffs.
That the LAFF organisers, in their disclaimer, unequivocally accepted the opinions of Dole and their lawyers concerning a film that the Dole representatives had not yet seen, points to the efficiency of SLAPP-tactics. Talking to Swedish journalists at a screening of the film I recently attended, Gertten remarked that one of the most frightening things of all this was experiencing the fear of many American journalists he had talked to – a fear he attributed to the lack of legally protected job security. Often these journalists had basically agreed with the filmmakers’ side of the story privately but still gone on to publish articles accepting the Dole point of view.
Ultimately this case once more demonstrates that genuine freedom of speech, and thereby democracy, is incompatible with today’s huge concentration of wealth within anti-democratic organisations such as multinational corporations. The long history of major fruit companies co-operating with dictatorships and financing the bloody suppression of any attempt at an independent labour movement has long made this clear to Central American workers.
As I was finishing what was originally intended to be the final-final version of this editorial, in mid-September (2009), the filmmakers’ attorneys had just filed an Anti-SLAPP Motion, asking the court to dismiss Dole’s lawsuit as meritless and directed against free speech. Simultaneously a cross-complaint against Dole was filed, with the filmmakers demanding damages for ‘Dole’s improper tactics in interfering with the film’s premiere’ and the corporation’s ‘false and defamatory statements’ concerning the film (Official website of Bananas!*). Then, as we had finished proof reading and layout and were about to go to print, we learned that Dole has withdrawn the lawsuit, citing the public debate, highly critical of the company, concerning freedom of speech that this case has brought about in Sweden, as their reason for doing so. The filmmakers are, for the moment, only cautiously celebratory, as it seems uncertain whether or not Dole, who maintain their criticism of the film, pose any conditions for dropping the lawsuit (Kulturnyheterna 2009).
To find out the latest news on this case, which threatens/threatened(?) to poison the very lifeblood of serious documentary filmmaking, readers are well-advised to visit the official website of the film: http://www.bananasthemovie.com/.
Debruge, Peter (2009), ‘Bananas!*’, Variety, June 22: http://www.variety.com/review/VE1117940539.html?categoryid=31&cs=1. Accessed 29 July 2009.
Forsström, Anders (2009), ‘Stor advokatbyrå företräder “Bananas!*”’, DN.se, July 29: http://www.dn.se/kultur-noje/nyheter/stor-advokatbyra-foretrader-bananas-1.920391. Accessed 30 July 2009.
Hollywood Podcast #55 – Bananas!*, (2009) Fredrik Gertten interviewed by Tim Coyne. June 28: http://hollywoodpodcast.com/2009/06/hollywood-podcast-55-bananas/. Accessed 30 July 2009.
Kim, Victoria and Zarembo, Alan (2009), ‘New lawyer aids Nicaraguan farmworkers who sued Dole’, Los Angeles Times, August 7: http://www.latimes.com/news/local/la-me-dole7-2009aug07,0,1234677.story. Accessed 29 August 2009.
Kulturnyheterna (2009), ‘Dole drar tillbaka stämning’, svt.se, October 15: http://svt.se/2.27170/1.1730141/dole_drar_tillbaka_stamning. Accessed 15 October 2009.
Official website of Bananas!*: http://www.bananasthemovie.com/. Accessed 13 September 2009.
Rampell, Ed (2009), ‘Yes, we have no bananas’, Jesther Entertainment, June 24: http://jestherent.blogspot.com/2009/06/laff-2009-bananas.html. Accessed 29 July 2009.
Rivera, Alex (2009), ‘Bananas! Split: Filmmaker Community Divides Over Dole Documentary’, indieWire, July 5: http://www.indiewire.com/article/first_person_filmmaker_alex_rivera_on_the_controversy_over_fredrik_gerttens/P0/. Accessed 29 July 2009.
Weissman, Robert (2008), ‘The 10 Worst Corporations of 2008’, Multinational Monitor Editor’s Blog, December 29: http://www.multinationalmonitor.org/editorsblog/index.php?/archives/105-The-10-Worst-Corporations-of-2008.html#extended. Accessed 29 July 2009.