I’m going to court! Well, the blog is… sort of!
Seth Tupper notices that Dakota Free Press coverage of South Dakota’s EB-5 scandal figures in an appeal to the South Dakota Supreme Court. On July 18, Sixth Circuit Judge John L. Brown dropped the state as a defendant from the lawsuit 35 Chinese investors have filed against our fair state and EB-5 czar Joop Bollen for allegedly luring them into investing in the doomed Aberdeen Northern Beef Packers project in 2010. Judge Brown said the investors can’t sue the state due to sovereign immunity and other considerations. The Chinese investors (known in the suit as “LP6 Claimants, LLC”) want the state Supreme Court to put the state back in the hotseat next to Bollen.
In his July 28 petition to the court, LP6 Claimants attorney Steven Sandven cites a May 21 DFP post to summarize the argument the Chinese investors make about the state’s responsibility for their dupage:
One of the advantages South Dakota’s EB-5 visa investment recruitment efforts enjoyed was that recruiters could tell investors in projects like Northern Beef Packers and the Iberdrola Buffalo Ridge II wind farm that our EB-5 Regional Center could claim the imprimatur of South Dakota state government. South Dakota’s EB-5 program wasn’t just another private profiteer; it was a reliable public agency, using the official state logo in its offering memoranda. Our EB-5 projects enjoyed loans and guarantees from the state. Foreign investors could be assured that the state government would actively monitor the EB-5 program and keep everything on the up and up. Our EB-5 recruiters could entice investors into Northern Beef Packers by touting the backing of Governor M. Michael Rounds via his overhyped and ill-fated South Dakota Certified Beef program. Governor M. Michael Rounds himself signed a letter to investors on his official stationery, under the state seal, inviting foreigners to invest in our EB-5 projects [C.A. Heidelberger, “Taking Notes from South Dakota, Chinese Recruiter Uses Trump to Recruit EB-5 Investors,” Dakota Free Press, 2017.05.21; cited in LP6 Claimants LLC/Sandven, Petition for Leave to Appeal Intermediate Order, LP6 Claimants v. South Dakota, Bollen, et al., 2017.07.28].
Special Assistant Attorney General Paul Bachand responded for the state on August 10 by telling the South Dakota Supreme Court, essentially, that I’m full of crap:
Plaintiff’s Petition alleges the State engaged in fraudulent inducement with no proof save citations to the Dakota Free Press online blog. The Dakota Free Press blog is neither a disinterested party nor is it a credible authority. It is most certainly a shaky foundation on which to attribute the type of scienter Plaintiff ascribes in its brief. More to the point, this Court should send a clear message that no online blog can impugn the wisdom of the Circuit Court’s decision which rests on clear legal authority [State of South Dakota/Bachand, State’s Response, LP6 v SD/Bollen, 2017.08.10].
There is far more to the LP6 Claimants’ appeal and the state’s counterargument than my little blog post. But check out Bachand’s modus operandi: he provides no evidence that Dakota Free Press is not a credible authority. (I will certainly admit to his claim that my blog is not a disinterested party: I’m as interested as the lawyers writing briefs here!) More specifically, Bachand does not refute a single claim made in the blog passage Sandven quotes nor any of the documented sources in my hyperlinks (which, alas, don’t show up in the written brief and which Chief Justice Gilbertson and his colleagues really ought to read). He just indicts the source and hopes no one asks about the underlying facts.
That’s the same M.O. Bachand uses on LuAnn Werdel in his GOAC/GEAR UP responses: cast Werdel as emotional and unreliable and hope that no one notices that he and the state haven’t refuted any of the claims Werdel has made about warning the state about unethical management of the GEAR UP program back in 2011.
I’m not going to court (though maybe an amicus curiae is in order?). But I do look forward to seeing if the South Dakota Supreme Court issues a formal opinion on the reliability of Dakota Free Press and whether that opinion has any bearing on the disposition of the state as a defendant in this EB-5 lawsuit. Either way, I’ll post any such decision in full here on the very interested and interesting Dakota Free Press!
Grammatical Postscript: I’m also interested in seeing whether the Supreme Court notices that “online blog” is an entirely redundant term… and whether anyone can refute that grammatical claim by showing me an example of an “offline blog.”