Prominent Defamation Lawyer Gets Involved in NM PRC Controversy

Sorry to write again about Avangrid/Iberdrola, but developments warrant it.

Iberdrola mostly owns Avangrid, which sought NM Public Regulatory Commission approval to buy PNM, which delivers electricity to most New Mexicans. The PRC disapproved, 5-0. A major reason was Iberdrola’s international reputation for bad conduct. The PRC hearing examiner recited extensive facts. Avangrid has appealed.

Mariel Nanasi is executive director of New Energy Economy, a consumer-interest gadfly that formally opposed the merger.

Background: PRC documents and international news outlets established long ago that Iberdrola is subject of a long-running Spanish investigation of corporate misconduct, including fraud and bribery, and has been subjected to hefty fines elsewhere; and Avangrid’s operations in other U.S. states have featured major problems with billing and service. There are allegations of fraud. However, Iberdrola is the world’s biggest wind-energy producer, and some New Mexico officials feel its renewable energy experience trumps allegedly bad corporate character.

Recently Nanasi misstated something: in reciting that Iberdrola had allegedly bribed public officials, spied on judges, committed other misconduct, she included “bribing judges,” which had not been alleged.

Her interview has found 63 YouTube listeners, including Avangrid/Iberdrola’s employees, lawyers, and consultants. Retake our Democracy has 35 subscribers, likely already unsympathetic to Avangrid. (I heard nothing of the broadcast until someone sent me “The Paper”’s article on Elizabeth “Libby” Locke’s letter, which he thought destroyed Nanasi’s credibility.)

It’s hilarious (or further evidence Avangrid is undesirable here) that Locke, who recently represented Dominion against Fox, is threatening a libel lawsuit by Avangrid against Nanasi. (Nanasi quickly issued a press release correcting the error.)

Is this an effort to recover for reputational damage, as Locke claims, or an effort to silence Nanasi, as she claims?

To prove defamation, Avangrid would have to prove Nanasi intended to make a false statement (knew she was lying or should have known and didn’t care) and that the lie damaged Avangrid’s reputation. Whether Nanasi knew or should have known she’d made a false statement is a judgment call for a jury: she did make the statement, but off-the-cuff; an exhaustive study of documents and news articles would tell her the stories on bribing public officials never mentioned judges. That Nanasi checked her work and corrected it quickly and publicly does not suggest malice; but Avangrid could allege she should have made that check before talking on You-Tube. Too, an intentional lie would have made little sense: it would be exposed, undermining credibility; and, except lawyers and fellow judges, few listeners distinguish sharply between bribing a judge and bribing other public officials. If this ever went to trial, I’d bet on the defense.

Reputation damage? Iberdrola’s reputation was already a disaster for the company, internationally. A few dozen people, likely already unsympathetic to Avangrid, heard Nanasi’s statement, but Locke’s letter and Avangrid’s press release have thousands or tens of thousands reading about the “bribing judges” allegation.

In court, the defense would argue that erroneously including judges among the public officials Avangrid allegedly bribed was a pretty minor error, quickly corrected. I’ve reached out to Avangrid’s lawyer and PR person here, to elicit more on Avangrid’s view.

An effort to recover millions of dollars in damages for a cynical lie told by Nanasi? Or intimidation?

We’ll see. The little misstatement has been corrected. Avangrid likely won’t sue. If it does, the minimal offense and the microscopic possible damages suggest the suit wouldn’t cover Avangrid or Libby Locke with glory. 

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[The above column appeared Sunday, 14 May 2023, in the Las Cruces Sun-News and on the newspaper's website, and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]

[By the way, I make no claim to having any personal knowledge of any of this. I know only what I have read in documents, news reports, legal briefs, etc. and what I’ve been told by various individuals about all this.]

[I do have grave questions (discussed in my recent column on these issues) about the effort by Avangrid to short-circuit the appeal process and the normal public discussion by agreeing with the PRC to drop the appeal and reconsider the rejected merger (without new public hearings, apparently!) Avangrid representatives I’ve spoken to (or read) contend that this was normal “procedural” communication between appellant and an appellee. Maybe the New Mexico Supreme Court will agree. However, I’d bet against that. To me, given a public entity’s obligations to inform the public, “procedural” stuff means “can we reschedule that hearing?” or “may we have an extra two weeks to submit our brief,” not an agreement so substantive it would end an appeal (in which others are involved) with no advance notice, and impair others’ rights. The secret plan to do so without, apparently, adding to the public record with new evidence and public discussion, seems particularly inappropriate. It may be legal, since dropping an appeal could be described as a procedural move. It may not.

[Later note (4June):  Posting another column today, I glanced at this one's headline and wondered if maybe there's not a clear dividing line between the permissible "procedural" communications and those that would be improper/illegal.  Of course you can call the PRC and say, "we want to drop the appeal," and to ask, "will you sign on to that," although PRC permission shouldn't be necessary; and Avangrid's lawyers could tell the PRC's lawyers that Avangrid plans to seek a rehearing at the PRC; but all the further discussion, of what will and won't be done at a possible rehearing, ultimately resulting in a secret agreement purporting to deprive other parties of their rights at the PRC, should be punished by the NM Supreme Court.  (There's a difference between telling them "we're dismissing our appeal and will seek a rehearing" and telling them, "we'll dismiss our appeal if you agree to a rehearing under these additional conditions," and the PRC members cannot properly discuss the latter, let alone agree on anything!)  The PRC is like a judge.  I can file papers with the judge, asking for what I want; but I can't have secret conversations with the judge about how s/he'll handle the case and whether she'll let your father testify.  Appealing to the Court of Appeals doesn't give me any additional right to talk ex parte with the judge about the case, particularly if I'm planning to bring it before that judge again!  i can dismiss my appeal, or tell the judge i'm doing so, but discussing details on my plan to ask for a rehearing could get both me and the judge suspended.  That the PRC is not exactly a judge shouldn't alter that.  However, I should note that I still haven't researched the issue, as I would if I were one of the lawyers in the case, so maybe there's some decision on the subject that I'm unaware of.]

I don’t mean to malign Libby Locke. She’s a star in her field. Lawyers represent their clients. Lawyers do not always (in their hearts – and, yes, most do have hearts, contrary to the popular imagination) agree with or admire their clients. But her involvement, so soon after the Fox decision, seemed noteworthy. Even a committed revolutionary in colonial North America represented British soldiers accused of murdering protesters, before the American Revolution. But.]