Dole Food Co.'s dismissal of a defamation lawsuit against a Swedish documentary filmmaker, citing free speech concerns, is a curious act of capitulation –- especially given its earlier assertions that the film “Bananas!*” is “blatantly false.”

The complaint filed by the world's largest produce company in July could hardly have been more indignant, accusing filmmaker Fredrik Gertten of “abdicat[ing] any sense of responsibility, self-restraint, or self-discipline” in his documentary about the toxic tort claims of Nicaraguan men who alleged a pesticide used on banana plantations operated by Dole had made them sterile.

“The right to free speech is a justly cherished and fundamental American value,” the suit proclaimed. “It is, not, however, without some limits.”

But with an anti-SLAPP motion to strike the complaint pending, Dole, which is based in Westlake Village, Calif., meekly announced last week that it was dropping the case. The press release cited “free speech concerns being expressed in Sweden” where a burger chain had said it would stop selling Dole fruit salad in retaliation for the suit and members of parliament had rallied in support of Gertten.

"While the filmmakers continue to show a film that is fundamentally flawed and contains many false statements[,] we look forward to an open discussion with the filmmakers regarding the content of the film," Dole's general counsel said.

Gertten had a different spin. “I suspect that Dole realized they had a weak case,” he told the TT news agency in Sweden. “They probably thought it was best to pull back before the trial.”

Dole sued Gertten and his production company, WG Film AB, after he premiered “Bananas!*” at the Los Angeles Film Festival in June. The film is defamatory, Dole alleged, because it “promotes as fact a false story that was adjudicated a fraud on Dole and on California's courts before the film was ever screened.”

In April, a Los Angeles Superior Court judge ruled that plaintiffs' lawyers fabricated the toxic tort claims as part of a “heinous conspiracy” to extort billions of dollars from Dole and the manufacturers of the DBCP pesticide. Gertten did not reedit his film to reflect Judge Victoria G. Chaney's findings.

"[J]ust as Defendants never contacted Dole prior to 'completing' their film, they likewise refused to consider the Court's ruling of fraud prior to releasing it," Dole claimed. "There can be no clearer case of defamation or actual malice."

Dole might not have been able to make a sufficient showing to defeat the anti-SLAPP motion, in which Gertten argued that the company was engaged in a “sophistical effort to silence debate” on whether it poisoned banana field workers. But both Gertten's and Dole's explanations for the dismissal are patently self-serving.

What may be closer to the truth is that the backlash against the “Bananas!*” suit threatened to become a PR debacle for Dole at a particularly sensitive time. Shares from an initial public offering expected to generate net proceeds of $468 million begin trading on the New York Stock Exchange Oct. 23.

As a business decision, perhaps, it makes sense for Dole to avoid being cast as a free speech villain. The irony of the dismissal is that Gertten can now cloak himself in the mantle of a free speech hero, diverting attention from the shoddiness of his research for “Bananas!*”

In the anti-SLAPP motion, he says editing was completed before last Christmas at which time “the film was 'locked' -– meaning no substantial changes were allowed.” Yet even a cursory examination of the court record would have showed him that Dole had raised the fraud allegations almost a year earlier.

Gertten has countersued Dole for damaging the box office value of his “well-crafted and timely documentary film.”

By Matthew Heller
10/22/09