Shell Offshore, Inc., et al v. Greenpeace, Inc.

Filing

Filed Order for PUBLICATION (ALEX KOZINSKI, A. WALLACE TASHIMA and MILAN D. SMITH, JR.) (RMG dissenting) Chief Judge Kozinski votes to deny the petition for rehearing en banc and Judge Tashima so recommends. Judge Smith votes to grant the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc, and a judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing. The petition for rehearing en banc is denied. [8697119]

Case: 12-35332

07/10/2013

ID: 8697119

DktEntry: 43

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHELL OFFSHORE , INC., a Delaware
corporation; SHELL GULF OF
MEXICO , INC., a Delaware
corporation,
Plaintiffs-Appellees,

No. 12-35332
DC No.
3:12-cv-00042SLG

v.
ORDER
GREENPEACE , INC., a California
corporation,
Defendant-Appellant.

Filed July 10, 2013

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and Milan D. Smith, Jr. Circuit Judges.

Order;
Dissent by Judge Gould

Page: 1 of 6

Case: 12-35332

2

07/10/2013

ID: 8697119

DktEntry: 43

SHELL OFFSHORE V . GREENPEACE
SUMMARY*

Maritime Law / Preliminary Injunction
On behalf of the court, the panel filed an order denying a
petition for rehearing en banc, with Judge M. Smith voting to
grant the petition.
The order denying rehearing en banc followed the panel’s
opinion affirming a preliminary injunction that prohibited
Greenpeace USA from coming within a specified distance of
vessels involved in an oil company’s exploration of its Arctic
Outer Continental Shelf leases and from committing various
unlawful and tortious acts against those vessels.
Dissenting from the denial of rehearing en banc, Judge
Gould, joined by Judges Pregerson, Reinhardt, Wardlaw,
W. Fletcher and M. Smith, wrote that a party should not be
enjoined because of its association with other entities, nor
because it endorsed or claimed affinity with “activist”
operations of other entities.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 6

Case: 12-35332

07/10/2013

ID: 8697119

DktEntry: 43

SHELL OFFSHORE V . GREENPEACE

Page: 3 of 6

3

ORDER
Chief Judge Kozinski votes to deny the petition for
rehearing en banc and Judge Tashima so recommends. Judge
Smith votes to grant the petition for rehearing en banc. The
full court was advised of the petition for rehearing en banc,
and a judge of the court called for a vote on whether to rehear
the matter en banc. The majority of the nonrecused active
judges1 failed to vote in favor of en banc rehearing.
The petition for rehearing en banc is denied.

GOULD, Circuit Judge, joined by PREGERSON,
REINHARDT, WARDLAW, W. FLETCHER, and
M. SMITH, Circuit Judges, dissenting from denial of
rehearing en banc:
In my view the dissent of Judge M. Smith has the better
position as contrasted with the majority opinion. This case
should have been reviewed en banc because the majority
opinion offends important principles that transcend the case:
(1) A party should not be enjoined because of its association
with other entities; and (2) A party should not be enjoined
because it, with what I would have previously thought was
free speech, endorsed or claimed affinity with “activist”
operations of other entities.
The majority opinion upholds a preliminary injunction
against Greenpeace USA based in significant part on acts
1

Judges O’Scannlain, Graber, and Christen were recused and did not
participate.

Case: 12-35332

4

07/10/2013

ID: 8697119

DktEntry: 43

SHELL OFFSHORE V . GREENPEACE

committed by legally separate Greenpeace entities. In doing
so, the decision disregards corporate norms of limited liability
and relies on a guilt-by-association model that offends justice.
The panel majority dismissed Greenpeace USA’s separate
legal status as irrelevant to its review of the preliminary
injunction, explaining that legal status is relevant only for
decisions on the merits. Shell Offshore, Inc. v. Greenpeace,
Inc., 709 F.3d 1281, 1289 n.7 (9th Cir. 2013). I disagree.
“Limited liability is the rule, not the exception.” First Nat.
City Bank v. Banco Para El Comercio Exterior de Cuba, 462
U.S. 611, 626 (1983) (quoting Anderson v. Abbott, 321 U.S.
349, 362 (1944)). There is no reason that rule is any more
applicable at the merits stage than during review of the
propriety of a preliminary injunction.
Moreover, under the preliminary-injunction analysis
established by the Supreme Court in Winter v. Natural Res.
Def. Council, 555 U.S. 7, 20 (2008), we must consider the
likelihood of success on the merits of the underlying action to
determine whether an injunction is appropriate. To determine
the likelihood of success on the merits of Shell’s claims, the
majority should have considered whether Greenpeace USA
can be held accountable for the acts of legally separate
organizations by merely endorsing or supporting those acts.
The panel majority did not do that, and, instead, assumed
Greenpeace USA’s guilt based on its association with and
stated support for these other Greenpeace entities. We should
be wary of such an assumption not only because it violates
corporate norms on which modern commerce is based, but
because it violates the bedrock principle that an individual
should not be held accountable for the actions of his or her
associates.

Page: 4 of 6

Case: 12-35332

07/10/2013

ID: 8697119

DktEntry: 43

SHELL OFFSHORE V . GREENPEACE

Page: 5 of 6

5

The Supreme Court has cautioned against imposing legal
sanctions based on statements that endorse or advocate for
illegal activity because it is “alien to the traditions of a free
society and the First Amendment itself.” NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 932 (1982); see also
Healy v. James, 408 U.S. 169, 186 (1972) (“Guilt by
association alone, without (establishing) that an individual’s
association poses the threat feared . . . is an impermissible
basis upon which to deny First Amendment rights.”
(quotations omitted)). The First Amendment concern here is
not whether the injunction is an undue restriction against
Greenpeace USA’s right to protest and monitor Shell’s
vessels at sea. See Shell Offshore, Inc., 709 F.3d at 1291. It
is that the majority’s opinion imposes legal sanctions based
on Greenpeace USA’s statements that at most “mere[ly]
advocate[d] the use of force or violence,” Claiborne
Hardware Co., 458 U.S. at 927, or “endorsed” the violent acts
of others, Planned Parenthood of Columbia/Willamette, Inc.
v. Am. Coal. of Life Activists, 290 F.3d 1058, 1072 (9th Cir.
2002) (en banc). These statements of support are protected
speech and should not have been a basis for enjoining
Greenpeace USA. See Claiborne Hardware Co., 458 U.S. at
928 (appeals to violence that do not in fact incite lawless
action are protected speech). The panel majority’s contrary
conclusion will undermine the freedom of an organization to
“stimulate [its] audience with spontaneous and emotional
appeals for unity and action in a common cause.” Id.
I would prefer to see our opinions give organizations like
Greenpeace USA the breathing space to let their fortunes rise
or fall based on their conduct, not on their association with

Case: 12-35332

6

07/10/2013

ID: 8697119

DktEntry: 43

SHELL OFFSHORE V . GREENPEACE

others and not on their free speech endorsement of others. I
regret that we take another course that is contrary to what is
or should be our law.
I respectfully dissent.

Page: 6 of 6