By Thomas Driscoll

ELK POINT, S.D., Dec. 16 – A state judge in South Dakota is scheduled to hear oral arguments tomorrow on ABC News’ motion to dismiss a $1.2 billion defamation suit brought by Beef Products Inc. (BPI). The proceedings are set to begin at 1 p.m. at the Union County Courthouse in the small town of Elk Point.

BPI sued ABC News in September over alleged false statements made in its March 2012 reports about a product the Dakota Dunes, South Dakota-based company calls lean finely-textured beef (LFTB).  The company said ABC, which repeatedly referred to the meat as “pink slime,” misled consumers into believing LFTB was unhealthy and unsafe.

ABC moved to have the suit dismissed, asserting that even if every fact BPI alleged is true, there is no legally justifiable case against ABC. The oral arguments will help Judge Cheryle Gering decide whether all or part of the case will progress to the evidence-gathering phase.

Ken Paulson, president of the First Amendment Center, said the United States “has a long tradition of investigative food journalism” because the framers of the Constitution wanted citizens to stay informed on the actions of those in power, including corporations. This makes defamation cases against news outlets very difficult to win. To prevail at trial, BPI would have to demonstrate ABC knew the information it reported was false and reported it anyway.

The consequences of the case could be severe. BPI’s complaint notes that since ABC’s stories, weekly sales of LFTB – much of the product went to school districts -- dropped from almost $5 million to under $2 million. BPI has closed three plants and terminated 700 employees. South Dakota has a food disparagement law that allows for tripled damages, which multiplies the $400 million in lost profits BPI seeks to $1.2 billion, making this one of the biggest defamation cases in U.S. history. BPI founder Eldon Roth has described the case as critical to the future of the company.

The case has the potential to significantly impact reporting, as well. “If a news organization can be punished for making errors while reporting in good faith,” Paulson said, “it would have a dramatically negative effect on reporting.”

Patty Lovera, assistant director of Food and Water Watch, expressed concern that a victory for BPI “will have a chilling effect, making reporters afraid to cover a legitimate controversy.” She added, “the public needs to know more about food, not less.”

Judge Gering is not bound by any schedule regarding the case and has wide discretion in issuing her decision on tomorrow’s proceedings. The parties could be waiting for weeks or months for official notice of how to proceed with the case.


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