One of the World’s Largest Private Prison Corporations Lied About Separating Families and Tried to Silence Us with a Lawsuit. They Failed.
Here’s why this is a major victory: for immigrant rights, criminal justice, and impact investing.
NOVEMBER 2022 UPDATE:
In a major victory for financial activism, free speech, and the fight against for-profit incarceration, we’re honored to share that the courts have finally ruled in Candide Group’s favor, and CoreCivic will now pay tens of thousands in fees! We WON.
The full original story from 2020 remains below, but as a recap — in 2018 and 2019, our organizing supported over 500,000 individuals across the country, who signed petitions and spoke out against private prison companies like CoreCivic profiting from family separation. Major banks like Wells Fargo, Bank of America, and JPMorgan Chase responded to consumer pressure and committed to stopping financing private prisons profiting from immigrant detention: successfully resulting in the drying up of the vast majority of bank financing. In 2020, CoreCivic sued Candide Group and our Founding Partner Morgan Simon personally for up to $60 million in damages, after we wrote several articles on Forbes.com asserting (correctly) that they profited from the family separation crisis. We’ve been tied up — mentally, emotionally, financially — in this legal battle ever since.
In the decision that came down November 8th 2022, federal judge William Alsup dismissed the defamation claims filed by CoreCivic — claims we believe were attempts to silence the many voices of those boldly standing up to prison profiteering, and causing the industry to lose critical investment partners. Judge Alsup ruled that our statements on Forbes.com criticizing the company’s policies in detaining immigrants and being involved in family separation were protected by the First Amendment. “[Simon’s] statements ‘serve the interests’ of preventing the enactment of abusive immigration policies,” he ruled. Prisons separate families, period.
These types of lawsuits are often referred to as “SLAPP” suits; Strategic Lawsuits Against Public Participation. Often the very filing of a SLAPP lawsuit causes the target to go silent simply because of the cost of paying lawyers to defend the allegations. Several groups such as the ACLU, Greenpeace, and Earth Rights International have formed a coalition to fight SLAPP lawsuits; ProtectTheProtest.org.
“Simon’s courage in fighting CoreCivic’s baseless SLAPP lawsuit is an inspiration to activists all over the world who live with the risk of being targeted by these types of corporate-funded legal abuses,” said Steven Donziger, an environmental lawyer in New York, who was sued by Chevron for $60 billion after helping Amazon Indigenous peoples win a large pollution judgment against the company. Indeed, with over 355 SLAPP cases documented globally, this is an issue of critical importance for activists working across the spectrum of social and environmental ills.
This has been a long battle, and we’re grateful to have been awarded some attorney’s fees even if this only represents a fraction of the damage CoreCivic has caused. We’re even more grateful for the support of our community of activists, the lawyers at Davis Wright Tremaine, and of course everyone who shared and supported this story. This is our collective victory.
Anti-private prison and detention center campaigns and subsequent money-moving activism are proof that speaking truth to power, coupled with where we put our money, matters. In the long run, people power can and will beat corporate power. We’re honored to be a part of this historic movement.
ORIGINAL STORY POSTED ON DECEMBER 14, 2020:
The Trump Administration’s family separation policy was morally reprehensible for two reasons. The first, and more visible reason, is that it ripped children from their parent’s arms, an unimaginable horror. The second, and perhaps less well-known reason, is that people made and continue to make money off of this horror. Private facilities housing children earned as much as $750 per migrant per night, in camps that you may remember were a far cry from the Ritz Carlton, despite the similar price tag. Private prisons in general made hundreds of dollars a night for housing adult migrants as well. The US government has used private prisons since 1984 in the dystopian federal prison system, and this past decade scaled our reliance on private companies to lock up immigrants via contracts with ICE.
This meant that, whether housing children or adults, private prison companies (that now house over 80% of immigrants in detention) not only participate in, but profit from instances of family separation as a part of their fundamentally exploitative business model. Since the summer of 2018, over 500,000 activists across the country took action to try and stop this dirty chain and saw real change in real time.
We at Candide Group were among these activists. Based in Oakland, CA, we’re an impact investing firm that works with families, foundations, athletes and influencers who want their money working for social justice. Part of our mission is to give our best shot at changing the culture of money — helping people understand that behind every social challenge is the nefarious hand of money causing pain, but also, the opportunity to subvert the harms of capitalism by investing in real solutions.
As part of our advocacy to end family separation, our Founding Partner Morgan Simon, who also serves as Senior Contributor to Forbes.com, wrote extensively about the link between banks, private prisons and immigrant detention. Unable to face the truth of their actions, the world’s first, and second largest, private prison company CoreCivic sued us at Candide Group, and Morgan Simon as an individual, for “defamation.” CoreCivic claimed we lied about the nature of their work and used these articles to drum up business for ourselves, when in reality we were unabashedly encouraging investors to stay away from their business — to stop funding private prisons and immigrant detention centers through their portfolios.
From the start, we believed this lawsuit was a baseless, expensive attempt to distract and silence us. It didn’t work. On November 19th, a judge dismissed this suit, affirming what we knew all along: CoreCivic participated in family separation.
Today, we are celebrating this legal victory to honor the work of hundreds of thousands of activists who rallied against the private prison industry both before us, and alongside us. Corporations cannot continue to intimidate critics without it landing on the historical record. We wanted to make sure to share in detail the story of this activism, and this lawsuit, to continue educating and engaging the public on actions we can all take to stop industries that make money off of human suffering; from prisons to fossil fuels to sweatshop labor and beyond.
A Winning Campaign
As the family separation crisis was erupting in 2018, grassroots activists across the country, united under the banner #FamiliesBelongTogether, realized they didn’t need to wait on the government to take action. The vast majority of immigrant detention centers are privately-owned, publicly traded, and financed by mainstream banks. We followed the money behind the private prison industry profiting from family separation, and learned that these banks provide billions of dollars of credit to help prison companies thrive. This meant that if you had even just $100 at a big bank like Bank of America or JPMorgan Chase, your money could’ve been part of financing family separation.
Families Belong Together coalition members formed a Corporate Accountability Committee and invited Candide Group to join, providing expert knowledge on the finance side and helping to organize local actions in the Bay Area. While each taking responsibility for our own actions, we successfully coordinated across over 100 organizations to do research, strategize, and execute on-the-ground actions and petitions, with incredible leadership from MomsRising/MamásConPoder, Presente.org, Make the Road, Mujeres Unidas y Activas, The Center for Popular Democracy, CREDO, DailyKos, ICCR, Little Sis, Jobs With Justice, Hand in Hand: The Domestic Employers Network, In the Public Interest, and (truly) so many more. We were part of organizing over 500 in-person actions across the country, and over 600,000 petition signatures from everyday people demanding their banks stop financing private prisons.
At the time we also launched our fiscally sponsored non-profit initiative, called Real Money Moves, to support this effort, which brought together over 30 NFL players, Orange is the New Black cast members, and other cultural influencers to publicly commit to keeping their money out of the private prison industry. This influencer element helped highlight the opportunities to not just avoid bad investments, but proactively seek ones that support BIPOC communities — collectively committing $10M to impact investing.
This multi-strategy campaign — which leveraged shareholder activism, consumer decision-making power, and media attention — built momentum towards a series of incredible public announcements. In 2019, eight major banks: JPMorgan Chase, Wells Fargo, Bank of America, SunTrust, BNP Paribas, Barclays, Fifth Third Bank, and PNC committed to end their financing of the private prison and immigrant detention sector.
While ultimately each bank has its own, independent decision-making process with multiple inputs, we believe that public pressure made a difference in getting these banks — banks representing 87.4% of the term loans and credit for the two largest prison companies, GEO Group and CoreCivic — to commit to stop funding the private prison industry. Our network of activists was successful in raising this issue as critical to America’s moral compass, and on multiple occasions private prison companies have acknowledged that the price of their capital was impacted by such activism.
From a financial activist strategy lens — why was this so effective? Critically, private prisons have historically been structured as Real Estate Investment Trusts, which has made them extremely dependent on big bank credit lines and terms loans to sustain and grow their operations. This cascade of banks pulling out was quite unique, and reflective of how strongly the family detention issue helped draw attention to the broader, problematic nature of both immigrant detention and mass incarceration.
Indeed, the Financial Times quoted Professor David Webber reflecting on the recent commitments:
“Throughout history, divestment campaigns, ‘in terms of the actual economic impact, . . . have often been underwhelming,’ Mr Webber says. Within the private prison industry, however, ‘there seems to be some of the strongest evidence I’ve seen to date that divestment campaigns . . . can actually work in that bottom-line sense of hurting the target economically, and not just raising attention.’”
Why They Sued Us
We get that it’s unusual for an investment firm to be deeply embedded in activism, let alone be sued for it. At our core, however, we’re activists who happen to use money as our tool for social change objectives. We direct about $40M in capital a year, and have supported investments in over 90 companies and funds, varying from Navajo Power, producing solar for the Navajo Nation, to MACRO, a multicultural media producer. We actively work to increase equity and inclusion both in investing and in society, and over 50% of our investees are women and people of color (compared to less than 10% for traditional venture capital).
As proud as we are of the capital we direct as Registered Investment Advisors, we also know that it’s just a fraction of the trillions of dollars in capital circulating the globe every year. We choose to think big and be vocal advocates for the thoughtful use of money in society above and beyond our own investing, encouraging investors (of any size) to put their money where their values are. This is why we have historically partnered with social movements — to amplify the opportunity for all of us to make conscious decisions about where we put our money, and to stay informed and accountable to what’s being called for by experts on the ground.
Through Morgan’s Senior Contributorship to Forbes.com we wrote extensively about the Families Belong Together movement, in addition to other news items at the intersection of money and justice. Forbes contributors are not staff journalists, they are experts in their fields encouraged to share what they are seeing. And what we were seeing — and writing about — was a successful movement of over 10 million people leveraging financial activism. This writing spread widely, with advocates like Alexandria Ocasio-Cortez and Elizabeth Warren sharing pieces, adding to the pressure on banks to show their customers that they didn’t want to land on the wrong side of history.
As hundreds of thousands of people were reading our articles and learning more about the connections between their bank accounts, private prisons and family separation, what CoreCivic saw, in our opinion, was the writing on the wall for their industry. Around the same time as the lawsuit filing, their credit rating was downgraded by Fitch from Average to Negative, they lost $1B in market cap during COVID, and their stock price fell substantially alongside GEO Group’s. They have stated that this led them to much more expensive credit sources, given that mainstream banks have made a strong statement that they do not want to be associated with an industry that makes money by locking people up. We believe this continues to be bad news for the private prison industry overall, and for shareholders concerned with retaining value.
We can imagine why CoreCivic was frustrated by our collective success raising awareness about these issues, and the fact that major banks chose to cut ties. Lashing out and filing a lawsuit against us, they claimed that we lied by saying that private prisons separated families and lobbied for harsher policies. They claimed that these lies are what caused the banks to pull out.
Yikes. Let’s break their strategy down.
First, it’s worth stating that fundamental to democracy is the right to have divergent opinions. Our opinion, apparently shared by hundreds of thousands of people, is that private prisons straight up shouldn’t exist, and that our current criminal and immigration “justice” systems are embedded with profit incentives that don’t deserve our dollars. The fact that our message and activism was effective doesn’t make it defamatory, or otherwise lawsuit-worthy.
Second, what the lawsuit said to us is that CoreCivic clearly doesn’t understand social movements. Our work built on thousands of grassroots activists over literal decades before us, and was conducted shoulder to shoulder with thousands more over the past few years. It’s simply impossible to claim one person or organization was responsible for the mass movement of money out of the industry. And even if that was the case — speaking the truth, whether us or anyone else, is by no means illegal. We believe the only party responsible for the market outcomes of its morally reprehensible actions is: CoreCivic.
Third, in their lawsuit, CoreCivic had to show we had a motive to defame them, and claimed that we did this activism work in order to lure clients in and make more money. We found this especially laughable. We’re proud of the $125M+ that we’ve advised for social justice. Keep in mind though, it’s not our money, it’s the money of the investors who engage us. Candide Group is a small business doing big things: we received minimal financial support for this work, and certainly didn’t make any profit. The vast majority of our time working on this campaign was essentially an “unfunded mandate” of Candide Group and our sister initiative, Real Money Moves. The contested statements about CoreCivic were written on Forbes.com, which pays roughly $50 an article to its contributors — meaning we see it as a critical platform to share ideas, not to make money. The annual budget for Real Money Moves in 2019 was less than $25,000. We did not receive a single client as a result of this campaign, and have historically only accepted clients by invitation because we only partner with investors who have a deep commitment to social justice. If this work was financially motivated, then — if anything, you should sue us for being terrible fundraisers and salespeople.
The bottom line is that we are incredibly proud of how much we were able to accomplish, with minimal financial resources. Both Morgan and I have each worked on private prison and immigrant detention issues since our respective college years. Pollyanna as this may sound, we do this work, because it’s our responsibility to our own values and communities. We are a mission-driven company first and foremost, and thus when we see an opportunity to support social movements, we jump on it; whether by supporting investments in innovative projects, or working to address the behavior of companies who haven’t found ways to make money without causing harm.
How We Won
Knowing we had the truth behind us, we prepared to fight back. We were grateful to quickly team up with experienced First Amendment lawyers (and critically — we had insurance. Activists, don’t skip that step if you can help it!) Though it was a challenging year, the legal support helped us stay focused on our investees, partners, and community, even as we dealt with this threat to activists everywhere.
There’s no special sauce or trickery to share here about why we won (with all due respect to our talented lawyers). Simply put, the truth set us free. Through the emotional ups and downs of the lawsuit, that’s what ultimately kept us centered and confident. The judge’s ruling was remarkably straightforward, and like us, equally focused on the undeniable truth that CoreCivic participated in family separation:
Throughout this process we’ve been disgusted to learn how, time and time again, corporations have used frivolous lawsuits to punish critics and detract from shareholder value in the process. Journalists and activists, from “Last Week Tonight” host John Oliver, to global environmental organization Greenpeace, deal with these suits all the time and don’t let it slow down their important work.
Corporations are slowly but surely learning that these frivolous lawsuits are costly to them, and by extension, to shareholders in the long run. While CoreCivic has appealed this ruling, we are keenly interested to see just how many dollars they are willing to waste on legal fees to keep this going, neglecting what should be their core responsibility at this moment: protecting those in their care from COVID-19.
Meanwhile, at CoreCivic: thousands of COVID cases
We found the timing of this lawsuit particularly ironic, given that shortly after being served it was found that “11 of the top 15 COVID-19 outbreaks” in the country had been in prisons. One of the worst outbreaks was at the Trousdale, Tennessee facility owned by CoreCivic, with over 1,300 confirmed cases, and in June it was reported that over 2,500 cases were confirmed across CoreCivic prisons and immigrant detention centers. One would hope they would have better ways to spend their time and money during a health crisis than on a lawsuit — like meeting the basic healthcare needs of those detained in their facilities. But again, this is the core problem with private prisons: their incentive is to keep people incarcerated and isolated, whether or not it’s safe or better for society.
Despite having to divert some of our time and energy to this lawsuit, we at Candide Group had a very different response to COVID-19 that perhaps highlights the difference between a social enterprise company and a company dependent on other people’s struggles. While CoreCivic watched people die in its facilities — like Carlos Escobar-Mejia, the first confirmed coronavirus-related detained migrant death — Candide Group helped get more PPP money into communities of color as part of a syndicate investing $14M into the Rural Community Assistance Corporation. While CoreCivic guards were reportedly pepper-spraying detainees who protested against inadequate healthcare in their facilities, we were proud to play a catalytic role in the founding of the Mayvenn Stylist Fund that raised over $1M for Black women stylists.
Business practices matter, and we’re sickened to see the incredible disregard for human life implied by CoreCivic’s response to COVID. Every time we received a document from their legal team, it was hard for us not to ponder: how many masks could they have bought for each hour of their law firm Clare Locke LLP’s time? 250? 500? Having appealed the judge’s dismissal of our case, how much more are they willing to waste while people continue to die in their facilities?
Even beyond COVID, harrowing examples of CoreCivic’s disregard for human dignity abound: as just one example, it hurts us deeply to share that an immigrant woman detained at CoreCivic’s Houston Processing Center alleges that herself and two others “were raped inside an ICE detention cell right before being deported.” She says the rape resulted in pregnancy and the birth of her attacker’s child, and on May 27th 2020 sued CoreCivic for damages.
We are sharing these realities because while this lawsuit is almost over, and Trump’s family separation policy was overturned, the reality of family separation and human rights abuses inside prisons is decidedly still ongoing. Anytime someone is incarcerated, they are separated from their family — whether it be an elderly grandparent, a child or a partner. Anytime someone is held in detention, they have family on the outside worried sick. And every day that someone isn’t provided proper medical care and precaution in a prison or detention center, they are at grave risk for contracting COVID.
We believe that private prisons must be the next barrier to go, on our journey to a true justice system and sound immigration policy. Between losing this lawsuit, turbulent finances, and a new administration that has committed to end the federal use of private prisons, the looming horizon of extinction may be more visceral than ever.
We need to remove the for-profit incentive from incarceration — but to be clear, our objective isn’t for the US to build a massive system of public prisons and detention centers. It’s time for us to drop our shameful distinction as the country that incarcerates more people than anyone else in the world. It’s time for us to create pathways to safety and dignity for the many immigrants that power our communities and economy. And it’s time for us as stewards of capital — whether it’s with $100 in the bank or $100M in a foundation — to be more intentional in ensuring that we’re investing in companies that lift up, not lock up, our Black and brown communities.
What’s Next
While CoreCivic remains unwilling to face the fact that people power can prevail over corporate power, we are turning our attention to the incoming Biden administration and it’s pledge to phase out the use of private prisons at the federal level — echoing attempts by the Obama-Biden administration. We are simultaneously optimistic of the possibilities under a new political sun while pragmatic that the government alone will never solve all our problems. This is, and has always been, bigger than just private prisons. Here’s a few more areas where our dollars need to align with the change we seek.
Our Criminal Justice System
Now is an incredible time for people to advocate and put “justice” into the multi-headed hydra that is commonly referred to as the US criminal justice system. Over 70% of people in jail nationally haven’t even been charged with a crime — many are there simply because they can’t pay bail. Counties and states that have ended the archaic, ineffective cash bail system have not seen increases in crime — if anything, they see tremendous cost savings. According to the Justice Collaborative,
“The United States spends $38 million a day to detain people pretrial, and nearly $140 billion a year. That cost is borne by taxpayers and could be redirected into education, housing, and economic development.”
The immediate end of cash bail, in addition to widespread sentencing overhaul, the Senate passing national legalization of marijuana, and other simple reforms, could go a long way in bringing more immediate justice to society.
As we collectively continue to take to the streets and the media to urge decision-makers to step away from the “bad” of mass incarceration — such as through calls to defund the police — we can also invest in the “good” of restorative justice alternatives. For example, organizations like the Restorative Justice Project and the Insight Prison Project facilitate education groups, victim and offender dialogues, and training programs to imagine a world without prisons — eliminating the need to pay for incarceration in the first place.
Our Immigration System
Fundamentally, we need fair and dignified treatment of immigrants who come to the US, due process for asylum seekers, and pathways for legal and safe stays in the US that don’t require a Phd (literally, or figuratively) to decipher.
If detention is to continue to be used at all as a policy tool in the near future, rectification is direly needed. Physical abuse, unsanitary conditions, and migrant deaths are far from new in the private immigrant detention space. However, in the words of the ACLU: immigrant detention is now serving as a certain “death trap” for the incarcerated during COVID-19. This is an atrocious use of our tax dollars (and potentially investment dollars, as well). Roughly half of immigrants detained spend 2–4 years in jail — for what had previously been treated as a civil infraction. There is no reason to detain so many immigrants for so long, and certainly not by paying tax payer dollars to private companies.
A step in the right direction, the Biden-Harris official website acknowledges the problematic nature of using private facilities for immigrant detention. As of this writing, their pledge reads:
“[Biden] will make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants. Biden will also make eliminating private prisons and all other methods of profiteering off of incarceration — including diversion programs, commercial bail, and electronic monitoring — a requirement for his new state and local prevention grant program.”
Like many advocates, we’re eager to assess the veracity of this statement, and see how the administration intends to navigate the challenges to phasing out private immigrant detention, exacerbated by the Trump administration. According to The Marshall Project, both CoreCivic and its competitor GEO Group secured “multiple 10-year contracts with ICE this year that experts say would be difficult to suspend, and would theoretically extend past the end of even a two-term Biden presidency.” Whether or not these contracts are overturned, there must be an explicit commitment to massively reduce the scale of immigrants who are detained in the first place. With the current immigrant detention population in the US over halved this year, largely as a result of COVID-19, there has never been an easier time to codify these reduced numbers into policy.
Our Bank Accounts
This campaign made stark just how problematic it can be to turn your back on your bank account. For so many of us money is a source of anguish, whether because we don’t have enough of it, or don’t feel great about how we acquired it. In either case, the sooner we accept that our money matters, and venture to know what it’s doing in the world, the better.
Just like a hammer, capital can be used to smash, and to build. It can be used to stop harm perpetuated by corporations, whether by taking away their sources of income, or encouraging behavior change through shareholder resolutions. And it can also be used to invest in the future we want to see, supporting renewable energy, quality jobs, home ownership in communities of color, and so much more.
For some people, taking action might mean moving their money from a big-name bank to a community bank. For others it might mean committing 100% to impact investment across all their assets; whether that’s a retirement fund, family office or foundation endowment. For some financial managers like us, it might be building more intentional alignment with social movements.
From mutual aid to taking a look at what your 401(k) is invested in, choose the financial activist strategies that work for you, and sleep better knowing your money won’t be separating families, destroying the environment, or otherwise conflicting with your values.
2020 has revealed which systems must be hospiced, and which must be collectively invested in. 2021 presents an opportunity to proliferate this momentum.
Gratitude
Thanks for bearing with us through a story we hope you found as messy and inspiring as social change itself. Thank you to our whole team, who gives us the courage and holds us accountable to our values in the most unchartered of waters. And thank you to the freedom fighters — from longtime activists to anyone who finds themselves in the predatory grips of an unjust system — whose lead we will continue to follow in building a more equitable reality.
We celebrate this legal milestone for the movement, while acknowledging that as long as people are locked up, our collective advocacy will continue. As impact investors, when money is actively contributing to injustice, we will be there to fight back… and to fund the solutions that can create a new paradigm for society. We hope you’ll join us.
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