Chevron's Legacy

Chevron's Legacy
The Pollution Chevron Left Behind...Shushufindi pit 38. Chevron's scientists found no contamination at this pit.

Wednesday, April 16, 2014

The unnecessary truth: reflections on what wasn’t told in the Chevron Ecuador RICO case

The following article is by EarthRights International (ERI) staff attorney Marissa Vahlsing, cross-posted from ERI's blog where it was originally posted April 15, 2014.  

Last November, Marissa took a leave of absence from ERI to volunteer on the Chevron v. Donziger trial in support of the Ecuadorian defendants.  These are her thoughts from the case. 

Lago Agrio, Ecuador: It is a Sunday afternoon in the Sucumbíos province in Northeastern Ecuador. Donald Moncayo navigates his way across a series of floating logs at the Aguarico 4 pit. He stops and dips his hand into a thick black pool and holds it up for us to see: black crude left by Texaco’s operations. 

Each year, several dozen delegations of people come down to the Oriente region of Ecuador to participate in one of Donald’s “toxic tours.” Learning about the history of contamination from Donald is how they bear witness to one of the greatest environmental justice battles of the past century.  

I first met Donald under very different circumstances – when he traveled to New York last November to serve as a witness in the now infamous trial for the retaliatory lawsuit that Chevron brought against dozens of Ecuadorian “afectados” (affected peoples), their lawyers, and supporting scientists in an effort to collaterally attack a judgment issued against it by an Ecuadorian court for decades of deliberate contamination in the Oriente

At the time, I had taken a leave of absence from ERI to serve as a volunteer on the trial team in support of the Ecuadorian defendants – the Lago Agrio plaintiffs (the LAPs). ERI has supported justice for the LAPs at various stages, but ERI was not directly involved in the trial, and my work there was independent of my work for ERI. For several months, I worked alongside an amazing team of young volunteer human rights lawyers, a handful of plaintiff-side trial lawyers, their family members and children who volunteered as paralegals, and law student externs. But the most meaningful work I did was alongside witnesses like Donald, who had traveled from Ecuador to tell their story. 

Donald had never left Ecuador before; but he decided to come to New York and testify – to tell a courtroom full of Chevron lawyers and a federal judge about the legacy of contamination that he saw, smelled, and lived every day in the Ecuadorian Amazon. Donald came to New York thinking that he might speak truth to power. But when he arrived in New York, he learned that his truth had had little place.   

Donald had never left Ecuador before; but he decided to come to New York to speak truth to power. When he arrived, he learned that his truth had had little place.  

In Kafka’s, The Trial, there is a line that reads:   
“No,” said the priest, “you don't need to accept everything as true, you only have to accept it as necessary.” “Depressing view,” said K. “The lie made into the rule of the world.” 
What is necessary then - necessary for the powerful to retain power, necessary for those who run the global economy to remain in control – becomes the rule of world. Other truths, like Donald’s, become unnecessary. 

At issue in the trial in New York was the validity of a judgment decided by Ecuadorian courts about facts in Ecuador under Ecuadorian law. Chevron had spent the better part of a decade arguing that the facts of the case should be heard in Ecuador, and that the courts there were competent to consider the case. That is, until Chevron lost. Badly. And then Chevron came back to New York, seeking to avoid paying the hefty judgment issued against it in Ecuador. And insisted that, when considering whether or not the Ecuadorian judgment was valid, the judge should not consider any evidence whatsoever of the existence of contamination. The judge agreed.

During the trial, witnesses like Donald were told that they could not speak about the contamination of their lands and water that Chevron’s predecessor, Texaco, had deliberately caused. The attorneys were not allowed to use the word “contamination” without approaching the bench, even in a case involving one of the largest environmental justice disputes in recent history. 

As lawyers, we learn about basic rules of legal procedure designed specifically to prohibit the type of behavior that Chevron exhibited in this case. Concepts such as “comity,” “judicial and equitable estoppel,” “forum non conveniens,” “freedom of speech,” and “prohibitions upon paying fact-witnesses.” These concepts operate to prevent a party from adopting completely opposite positions on an issue for purely strategic reasons. They operate to ensure that courts in the United States respect the sovereign decisions of foreign judiciaries. They protect the right of individuals and activists to demand justice when they are wronged. They prevent parties from purchasing fact witness testimony in order to ensure that testimony is not influenced by money.

Each of these fundamental principles was flipped on its head in deference to Chevron. The company was allowed to first argue that the case should be heard in Ecuador and then change its tune when it turns out it played its hand wrong. Rather than respecting the foreign judgment, the court subjected the Ecuadorian judge to a cross-examination “pop-quiz” about his 188-page, single-spaced ruling – all done through translation where much was lost and little more was understood. 

Rather than protecting freedom of expression, we watched as Chevron was allowed to turn good-faith advocacy campaigns and litigation into “conspiracy” or “extortion” under a law that was intended to be used by the government to prosecute mobsters. The court condoned the expense of millions of dollars to issue wide-reaching third-party subpoenas against activists, lawyers, journalists and artists who did nothing more than speak out against what Chevron’s predecessor did in Ecuador. The court was even willing to tolerate Chevron’s practice of hiring private corporate espionage firms to spy on us and on activists and affected peoples. 

And rather than considering whether testimony was improperly purchased from a fact-witness, the court credited Chevron’s star witness, a man who has admitted to both giving and receiving bribes in legal cases and who Chevron will pay upwards of $300,000 by 2015 in exchange for his testimony in the case

As a young attorney who has decided to dedicate my career to advocating on behalf of communities like those harmed by Chevron, this new upside-down world – where the necessary becomes true, where power decides truth – is a terrifying prospect. 

There is much that I could say about what it was like to be a part of that trial – from the small things: the everyday discrepancies between the size of Chevron’s army of lawyers versus our small team of attorneys and volunteers; or how Chevron waited until the eve of trial to drop its claims for monetary damages and thus deprived us of our right to insist upon a jury trial, after we had spent months preparing for a jury trial; or how, without a jury present, the court gave the large, comfortable jury room to the Chevron lawyers while we were left with two small rooms only large enough for three people to stand at once; to the overwhelmingly large things like the weak legal basis upon which Chevron has proceeded – without (in my opinion) any showing of such basic legal requirements as causation, injury, standing, or the ability to seek injunctive relief under a statute that many courts agree only provides for damages in civil actions. 

But when Judge Kaplan’s March 4, 2014 decision in the case came down, I could think only of Donald. 

When Donald arrived in New York, he was told that he could not speak his truth about the massive contamination in the Ecuadorian Amazon – that is was not necessary. Instead, with the Court’s approval, Chevron counsel served Donald with a subpoena while he was on the witness stand in open court requesting a mirror image copy of his hard drive and then told he would go to jail if he didn’t hand over what Chevron was seeking. This was so even though the discovery period had ended months before; even though the deadline for serving subpoenas had ended nearly one year before; and even though Donald Moncayo had no lawyer and spoke no English. Donald’s courage to speak the truth became just one more casualty in this upside-down world.

That night our team stayed awake well into the morning hours – trying to find Donald a lawyer. The next day, I watched as Donald got into a black car with his new lawyer, a Chevron lawyer, and a digital forensic technician hired by Chevron. Donald was gone for nearly ten hours, and when he came back, he was in tears. We sat down to write a declaration together to be read in open court the next day – to express the humiliation, invasion of privacy and loss of dignity that Donald had felt. When we tried to read the declaration in open court, we were told that Chevron would seek a bench warrant which could put Donald in jail. 

Some weeks ago I was down in Lago Agrio with Donald, walking out upon the pits and wells left by Texaco (now Chevron) after their nearly 30 years of operations in the Oriente region. I watched as Donald showed me how pits that were supposedly “remediated” still contain thick dried black crude within a few feet of the soil. “It’s a lie,” he says as he runs the dirt through water and the water takes on the thick black sheen of crude. But a necessary lie.    During the trial, Chevron could never really deny the truth: that the contamination in the Oriente is real. This was so regardless of whether there was any merit to their RICO allegations. 

One night I stayed up until 3am helping to put together a pile of evidence – Chevron’s own experts’ samples of the illegal presence of heavy metals that were submitted to the court in Lago Agrio. But when we went to introduce those samples at trial the following day during the cross-examination of Chevron’s lead scientist, Sara McMillen, the judge stopped us. The evidence never made its way in. Donald’s truth was never told. 

In our own way, we each bear witness even when we act as attorneys. We watch the law decide histories, decide futures. We watch the power that the law wields and the manifold ways in which power wields the law. And a trial, an American trial – at bottom – is about story telling. But there were stories that were never told during that trial. As I sit down now to read through Judge Kaplan’s 497-page decision, it is as though our side wasn’t even in the room – or that we didn’t need to be. The story that Donald tells to any traveler willing to go out to the Oriente region of Ecuador never had its day in that New York courtroom.  

During the closing arguments of the trial, the lawyer for the LAPs, Julio Gomez, began his comments by saying:  “La sabiduria nos llega cuando ya no sirve para nada.” Julio then went on to say “Perhaps not a lot of people in this Court understood what I just said.  And perhaps those who didn't understand what I have just said now have, for one brief moment, a sense of what my clients felt like to participate in this. Translated into English, what I have just said means, wisdom comes to us when it is no longer useful.  Those are the words of Gabriel Garcia Marquez, not mine. And he means to say, I think, wisdom often comes too late.” 

In this case, wisdom might have come too late for many of us – for those activists and lawyers who never envisioned a day when fundamental First Amendment activity becomes the basis for invasive subpoenas or worse – a RICO case; for Chevron who thought it could win in Ecuador, and then came running home when it didn’t.  

The "War Room" (Steven Donziger is third from the left)   

Because, as Rick Friedman, trial attorney for Steven Donziger – the New York lawyer who assisted the Ecuadorians in their legal struggle and has since been named a defendant by Chevron - told the Court in his closing arguments:  
This case is bigger than just Mr. Donziger or even the 30,000 people in Ecuador who may be affected by the Court’s ruling.…The legal compass that the Court has, the principles that it has to guide itself through these facts are important beyond this case.  Your decision will be read by people around the world, and they will be looking for something more than whether somebody ghostwrote an expert report, or even whether somebody bribed a judge in Ecuador.  They will also be looking to see if American courts will follow their own rules of law. They will also be looking to see whether there is going to be special exceptions, special rules for large American corporations.
Thousands of miles away, courts on several continents are being asked to decide what happened in the Oriente and who is to blame. They are being asked to draw lines between advocacy and extortion, between asserting rights and participating in a conspiracy. As Judge Kaplan's opinion faces scrutiny in a court of appeals and other courts consider Chevron's tactics and responsibility, I hope that wisdom will not come too late.

Tuesday, March 25, 2014

Don't Buy Chevron's Big Lie!

Don't Buy Chevron's Big Lie!
Global Warming is a Myth
The NSA is Not Really Spying on Americans
The CIA Doesn't Torture Prisoners
Chevron Has Been Exonerated from Ecuador Disaster

These are all headlines you often see in U.S. media that are obviously false. Yet why do they even get traction? The answer, of course, is that they serve powerful interests who promote them incessantly in whatever space they can find or that money can buy in the mediasphere. But that doesn't mean that people buy into them, or that they should.

The Real Story

Chevron's "Big Lie" about its contamination in Ecuador is a prime example. Not only has Chevron been found guilty in a court of law of dumping billions of gallons of toxic waste into the Amazon rainforest, but the decision has been confirmed unanimously by two different appellate courts in Ecuador where Chevron fought to have the trial held. Dozens of independent journalists have also confirmed the existence of Chevron's massive pollution, most recently in this article published just last week.

Chevron likes to point to a recent court decision by a federal judge in New York who "determined" after a one-sided trial with no jury that the trial in Ecuador was marred by fraud. The judge based his decision on the clearly corrupt testimony of an Ecuadorian man to whom Chevron paid well over $350,000, or 20 times his annual salary. Yes, it is offensive to our sensibilities as U.S. citizens to think that such a sting would fly in a U.S. courtroom. But think again about the current state of our democracy, the massive and growing corporate power, and the daily exposure of injustices that read like the script of the next Jason Bourne movie. And then read on – Hollywood's best couldn't make this stuff up.

Let's dispel the myths outright:
  1. Chevron was in no way exonerated from responsibility in the recent decision by Judge Lewis Kaplan in its RICO case.
  2. Kaplan did not even review the evidence of contamination in Ecuador that the Ecuador trial court determined was the basis for Chevron's liability.
  3. The decision is not the least bit binding in any of the fora where Ecuadorian plaintiffs are now pursuing enforcement (currently Canada, Argentina and Brazil).
  4. An objective review of the facts presented in the case shows that with respect to the actual fraud claim – that the Ecuadorian verdict was ghost written – the ONLY evidence is a hearsay statement by a disgraced judge, a chevron PAID witness and an admitted liar. That kind of flimsy case would be laughed out of Judge Wapner's court.
  5. The decision in Ecuador was based almost completely upon scientific evidence submitted by Chevron itself, including internal documents ordering the destruction of records related to oil spills.
So despite sensational headlines, Chevron still owes $9.5 billion to the communities in Ecuador and no court has found otherwise. Indeed, Chevron has openly admitted its predecessor company Texaco deliberately dumped billions of gallons of oil waste into the rivers and streams relied on by indigenous groups and entire communities for sustenance. The company never denied that it engineered and exclusively operated for decades an oil extraction system that was designed to pollute. Chevron's contamination in Ecuador was not an accident; it was a corporate decision designed to sacrifice human health and well being in the name of greater profits.

Eventually, Chevron CEO John Watson is going to have to answer to his shareholders as to why he spent millions upon millions of their money on a legal strategy that offers no actual legal remedy for the company. What he actually spent their money on was a talking point – and a false one at that.

Anatomy of a #BigLie

As is widely known, Chevron bought itself a disaster unlike any other when it merged with Texaco in 2001. For years, it has tried everything, literally sparing no expense, to wash off the filth of its ADMISSION of deliberately poisoning the Ecuadorian Amazon over decades. To that effort it tried pushing its case in any forum it could that would give a favorable verdict – including now more than 30 federal courts throughout the U.S. When you have 60 law firms and 2,000 legal personnel and are spending over a billion dollars to fight, that opens up a lot of options. But Chevron has fundamentally failed. In fact, "18 different U.S. federal trial courts and all four federal appellate courts have either rejected Chevron's claims outright, or refused to adopt them. The U.S. Supreme Court also denied a Chevron petition to review a decision denying it the right to arbitrate the issue of liability."

Yet Chevron finally found two venues working for it – Kaplan's court and an International Investor Tribunal of the Hague (to learn more about how anti-democratic and biases that venue is, read this release from Public Citizen). So, in crude yet sadly accurate terms, Chevron threw all the sh*t it could at the wall to see what would stick. That's how it found Judge Kaplan. Kaplan actually invited Chevron to file the RICO case against the Ecuadorians and their counsel, and then assigned the case to himself rather than go through the random selection process as is the normal custom in the federal judiciary.

The whole process stunk from the beginning.

Witnessing the trial myself last fall and consulting with lawyers in the field, I can attest that things went on in Kaplan's courtroom that raise disturbing questions around his own ethics and the U.S. judiciary. The list is long but includes: allowing Chevron to pay its witnesses in violation of rules barring the same; degrading treatment of a foreign judge from Ecuador who testified that he wrote the judgment; threats and outright hostility to Ecuadorian witnesses and permitting absurd lines of questioning in open court while acknowledging their inappropriateness at sidebar, among many other problems. The Second Circuit Court of Appeals (which oversees Kaplan) will most likely strike down most – if not all – of Kaplan's ruling. Click here to read the Ecuadorian legal team's analysis of why Kaplan's decision is "fatally flawed" and will likely be overturned on appeal and backfire against Chevron abroad. In the meantime, Kaplan's judgment still carries no legal authority outside the U.S. and it decidedly will not stop the seizure of Chevron assets.

So then, why did Chevron pay through the nose to get the verdict?

Setting a Precedent: A Clear and Present Danger

Let's be clear: Chevron's main "victory" (if you want to call it that) is not in the actual verdict – since it has no legal impact on enforcement – but the SALE of the message that it brings. And that was its primary goal in the first place. Chevron knows that its case looks pathetic the moment anyone actually looks beyond the surface. They're counting on most people NOT to look. And they are counting on most members of the U.S. media to swallow the story as it is fed to them by Chevron's deep-pocketed public relations team. Some journalists have paid passing mention to the glaring injustices of Kaplan's court, like the fact that Guerra – the key witness upon which the fraud claims lie – completely lacks credibility. However, almost all continue to promote false Chevron talking points. And everyone knows the famous expression about repeating the same lie over and over.

Ironically, the grave danger here is not to the Ecuadorians seeking justice. In fact, they're not dissuaded in the least by a U.S. judge acting in an overtly racist manner, with the gall to pass judgment on their legal system without knowing the first thing about it nor even trying to educate himself. No, the real danger is the precedent this sets for our work to hold Chevron and other U.S. corporations accountable. Kaplan's ruling, if allowed to stand, tries to criminalize the critical First Amendment activity of watchdog groups like ours. It would allow any corporation to bring SLAPP lawsuits against human rights and environmental activists and their lawyers and force them to spend millions of dollars in time and legal costs defending themselves. Faced with the risk of turning over all their information to their very targets of their campaigns or possibly being fined if they refuse to comply with sweeping subpoenas, many groups will be cowed into submission before their cases even get to court.

If our government – spurned on by pressure from civil society – does not step in and prevent this heinous attack on justice and the First Amendment, then we might as well start waving the white flag in the face of growing corporate power in America. That's why the Sierra Club, Greenpeace USA and 40 other human rights and environmental NGOs (most of which have never even been involved in this campaign) condemned Chevron's actions and well over 100,000 people have sent messages to the U.S. Senate demanding that they investigate this company that has gone off the rails.

We cannot permit Chevron's Big Lie that it is off the hook in Ecuador to take hold and grow.
It threatens every action we take to challenge corporate crimes at home and abroad. The first step to fighting back is not permitting the "Big Lie" to permeate our body politic any further. Chevron can spend untold millions touting this verdict but DO NOT BUY IT – and don't let anyone else buy it either.

Wednesday, March 5, 2014

Trudie Styler on Seeking Justice in Ecuador

Along with her husband Sting, Trudie Styler founded the Rainforest Fund 25 years ago, and as a longtime advocate for the rights of the indigenous communities of the Amazon, she has supported the legal efforts to hold Chevron accountable for its human rights and environmental abuses in Ecuador.

Today, Trudie posted a powerful article on Huffington Post. We encourage you to read and share this thoughtful piece. Thank you, Trudie.

Seeking Justice in Ecuador
Originally posted on The Huffington Post.

Let us begin with a common understanding; let's start with what is not in dispute. The Amazon rainforest is one of the world's most important ecosystems and is home to the largest remaining area of tropical rainforest on the planet. Its watershed is the largest river system in the world, covering 40 percent of the South American continent and carrying 20 percent of the world's flowing fresh water. The rainforest is also the ancestral home of nearly 200 indigenous cultures; people who have demonstrated sophisticated ecological stewardship of their rainforest territories for thousands of years. And the Amazon rainforest -- our climate's regulating heart-pump, key to the fight to stem global climate change -- is in peril, under increasing threats from our global economy's unsustainable demand for finite resources: timber, minerals, hydrocarbons.

I am no stranger to the struggles of indigenous people in the Amazon to protect their ancestral territories from the short-sighted and exploitative "development plans" of governments, or from the unchecked greed of the global extractive industry. My husband Sting and I founded the Rainforest Fund 25 years ago, and have worked for decades -- at times with great success, and at times with heartbreaking failure -- in support of indigenous people, such as the Kayapo who live along the legendary Xingu river of the Brazilian Amazon, in their fights for self-determination and protection of their pristine lands.

Over the last six years I have been working in Ecuador's northern Amazon, a region of unparalleled biological and cultural diversity that has been decimated by decades of reckless oil extraction. It has been an honor to work in support of, and to learn from, the Cofan, Siona, Secoya, Kichwa and Waorani peoples of the Ecuadorian Amazon on a water project -- -- which is building a movement for clean water, cultural survival and rainforest protection. But it would be dishonest for me not to admit that I wish such a project was unnecessary. I wish that history was not so cruel as to demand the need for a project to provide life's basic necessity -- clean water -- to the ancestral guardians of the rainforest. And yet, the region's rivers and streams are today poisoned, necessitating rainwater catchment systems and cultural renewal for these forest guardians, who for millennia relied upon the water flowing through their boundless backyard for drinking, cooking, bathing, and fishing.

You may be familiar with the tragic story of oil drilling in northern Ecuador: Chevron (formerly Texaco) deliberately dumped billions of gallons of toxic wastewater and spilled roughly 17 million gallons of oil ("cost-cutting measures") in the rivers and streams of the once-pristine forest. The consequence: a severe public health crisis amongst the indigenous people and farmers of the region. Cancer, birth defects, disease, and poverty for those unlucky enough to live above an American oil company's underground rivers of liquid gold.

A lawsuit was filed 20 years ago to hold the American oil company accountable, and in February 2011 Chevron was found guilty of environmental crimes in Ecuador, and was fined $19 billion by Ecuadorian courts. Ecuador's Supreme Court recently upheld the verdict, but cut the damages to $9.5 billion, a figure which would allow for environmental remediation, provision of health care and clean water, and cultural restoration, but removed the punitive damages ordered by the lower courts.

And we hoped that was the end of it. That Chevron would recognize its historical wrongs, pay the fine, and pledge to repair the damages that it caused. But instead, it has fought with alarming intensity to evade responsibility. Unfortunately, it seems, corporate impunity is the theme of our days.

Chevron has spent hundreds of millions of dollars on lawyers, public relations firms, private investigators in order to impugn the verdict in Ecuador, assault the entire Ecuadorian judicial system, discredit the human rights lawyers, and humiliate the indigenous people and farmers, who are guilty of nothing more than living in the forest and drinking the water poisoned by oil and the byproducts of its excavation.

Sting and I had the unfortunate opportunity to spend several days over the many weeks in October and November attending a trial in U.S. federal court in New York, where Chevron accused Steven Donziger, a human rights lawyer and friend of mine, along with the indigenous peoples and farmers of Ecuador, of having a waged a multi-decade racketeering conspiracy against the company. Filed under the RICO statute -- designed originally to prosecute organized crime syndicates -- Chevron's racketeering lawsuit is the oil giant's alarming and cynical attempt to destroy a two decades-long effort to hold the company accountable. And tragically, they have succeeded.

Instead of owning up to its grave responsibility in Ecuador, Chevron instead has spent millions of dollars creating what appeared to me a modern Kafkaesque drama in the courtroom, where suddenly the victims of Chevron's contamination in Ecuador have become the accused, and the polluter has become the victim; an absurd theatre where justice has been turned on its head.

It is not my place, nor my expertise, to opine on the legal matters involved. I am nonetheless compelled, principally because of the suffering of humble, dignified people I have witnessed in Ecuador at the hands of an American company, to say that Chevron's legal and public relations tactics in this case constitute a grave injustice. That the affected indigenous peoples and farmers, and the human rights lawyers who have advocated for them, should find themselves in a New York courtroom, accused by its abusers of conspiracy and fraud is a preposterous, humiliating, and distracting sideshow. The victims of a terrible environmental crime have become the guilty parties, and the grave wrongs perpetrated against them are brushed aside, apparently no longer relevant or worthy of note.

One should always ask questions in life. Among the greatest and most pressing questions of our time, indeed of all times, must be: What is the nature of justice? And: How can justice be attained? What kind of world are we living in when a farmer from northern Ecuador, Donald Moncayo, a kind and generous man whom I know and admire; who lost family members and friends to the sickness produced by oil contamination; who has worked tirelessly to bring attention to the plight of his community and surrounding communities now stands accused of conspiracy and racketeering only because he has dedicated his life to holding a corporation accountable?

What kind of world are we living if it has been shown that only 90 companies are responsible for two-thirds of man-made climate-endangering emissions. And among those, we know that but a few companies -- like Chevron, Exxon and BP -- are primarily responsible for climate change since the dawn of the industrial age, and yet we have made no progress in holding them to account, or forcing them to change course? With a stranglehold on government and resources that frequently dwarf that of the vast majority of nation-states, these companies continue to operate with absolute impunity.

These are huge questions. Our shared future depends on asking them, and relentlessly seeking answers. And I suspect that how we confront, and ultimately dismantle, corporate impunity may be the greatest challenge of our time.

Tuesday, March 4, 2014

Court Ruling in Chevron’s RICO Case: Violates First Amendment and Will Backfire In International Courts

This morning, U.S. District Judge Lewis Kaplan delivered his ruling in Chevron's retaliatory RICO case against the Ecuadorian villagers living amidst the company's contamination, and their long-time legal advocate Steven Donziger.

Donziger, his appellate counsel Deepak Gupta, and Han Shan, U.S. spokesperson for the Ecuadorians issued a press release earlier today with the headline:

Chevron’s Flawed RICO Decision in Ecuador Case Violates First Amendment and Will Backfire In International Courts, Defendants Say

The release contains brief statements from the three people listed above, as well as an informative background document with additional analysis on the ruling.

An excerpt from Steven Donziger's statement: 
“With all due respect to the court, this is an appalling decision resulting from of a deeply flawed proceeding that overturns a unanimous ruling by Ecuador’s Supreme Court. We believe Judge Kaplan is wrong on the law and wrong on the facts and that he repeatedly let his implacable hostility toward me, my Ecuadorian clients, and their country infect his view of the case. This decision is full of vitriol, is based on paid evidence from a corrupt former judge, and ignores the overwhelming evidence that Chevron committed environmental crimes and fraud in Ecuador. Through this decision, we now have the spectacle of a Manhattan trial judge purporting to overrule Ecuador’s Supreme Court on questions of Ecuadorian law. All of these factual and legal issues will be addressed in due course on appeal. We are confident we will be fully vindicated in the U.S., as we have been in Ecuador."
Donziger's statement concludes:
"I will continue my efforts on behalf of my clients consistent with the law. I also will pursue an immediate and expedited appeal so that a panel of impartial judges can review this decision.”
Deepak Gupta, the appellate attorney for Donziger, said:
“Today’s decision should be extremely troubling for anybody who cares about the rule of law. This court has taken the extraordinary and unprecedented step of appointing itself a worldwide fact-finding commission and issuing what is in effect a global anti-collection injunction that would preclude enforcement of a judgment from another country in every jurisdiction... This decision also effectively outlaws core activity protected by the First Amendment such as bringing lawsuits, holding protests, issuing press releases, and engaging public officials. This is particularly appalling given that this case is about holding a corporation accountable for refusing to clean up decades of toxic pollution in the Amazon.”
And Han Shan, U.S. spokesman for the Ecuadorian villagers had this to say:
“While the Ecuadorians respect the rule of law in all countries, they do not accept this court’s jurisdiction nor this ruling. The affected communities long ago gave up hope that a U.S. court would provide them relief from Chevron’s contamination, which has taken their loved ones, poisoned their lands, and imperiled their cultures.

Their focus now is on enforcing their judgment in countries where they can receive a fair hearing about Chevron’s pollution of the rainforest and refusal to abide by a legitimate ruling from the courts in Ecuador, where the company demanded the case be heard. It is time for Chevron to end its abusive efforts at evading justice, and restore the indigenous people and villagers who suffer from the company’s terrible legacy.”
Read the entire press release here.

Amazon Watch, a US-based human rights and environmental organization that has long supported the Ecuadorian communities, issued a press release as well, stating:
Amazon Watch stands with Ecuadorian communities in rejecting a misguided judgment delaying justice for some 30,000 indigenous people and farmers who continue to suffer from the company's toxic legacy in the Amazon rainforest. The decision – handed down today by New York District Court Judge Lewis Kaplan – also underscores the threat that well-financed corporations pose to justice and the rule of law with their ability to spend hundreds of millions of dollars on efforts to attack victims and their allies.
Today's verdict is an example of Chevron buying and bullying its way to a verdict with 60 law firms and thousands of legal professionals hell-bent on exhausting the Ecuadorians and their allies. Such a verdict will ultimately prove useless in Chevron's efforts to evade justice.

Thursday, February 20, 2014

Paul Barrett & Business Week agree: Chevron's lawyers may not even believe their own arguments

Below is a short, must-read piece from Marco Simons, Legal Director of Washington DC-based EarthRights International (ERI), a "nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment," as ERI's mission states. For nearly twenty years, ERI has provided legal support for oppressed and marginalized communities, often fighting exploitation by multinational corporations and their allies intent on plundering their natural environments for profit. From Burma to Nigeria to the Amazon, ERI's lawyers, activists, and advocacy trainers have done inspiring work—inspired itself by a deep and abiding commitment to fairness, justice, and equity. That's what Marco is talking about in his conclusion. Read for yourself.
Re-posted from Marco's blog at EarthRights International:
Yesterday, BusinessWeek picked up on Michelle's blog post from last week highlighting the inconsistent positions taken by Gibson Dunn, the law firm that represents Chevron, on an issue that is central to Chevron's case against attorney Steven Donziger. Paul Barrett's article confirms that Gibson Dunn is arguing both sides of the issue, but says that this isn't a problem because "That, for better or worse, is what lawyers do." Perhaps unintentionally, Barrett makes a pretty strong case for why you want lawyers who believe in your case.
Barrett has done us a service in confirming that, according to Gibson Dunn, Chevron allowed their lawyers to argue against them in another case. So Gibson Dunn may not be unethical, but Chevron might be a little stupid. Barrett also conveniently overlooks the fact that Gibson Dunn is not simply taking different positions in different cases – it's arguing against Chevron's position in another case that, because it is at the Second Circuit Court of Appeals, will be binding on the lower court deciding the Chevron case.

Barrett is right that the rules allow Gibson Dunn to take a position in one case that could harm or even destroy their legal position in the Chevron v. Donziger lawsuit, as long as Chevron agrees. Doing so, however, doesn't bolster their credibility. It's generally more effective to convince a judge that you actually believe in the position you're taking, not that you'll simply "argue either way, depending on the interests of whoever is paying [your] bill," as Barrett describes it.
As lawyers who take cases that we believe in, arguing positions that we believe are correct, I and my co-counsel don't have to face the dilemma that Gibson Dunn faces – and we don't face judges who are skeptical of our positions because they think we're simply hired guns. Sure the rules allow us to argue any position supported by the law, but if it were your case, wouldn't you want lawyers who actually believed what they were saying?
For more background, read last week's piece here on the Chevron Pit: How Chevron Might Have A Lawsuit Against Its Own Law Firm for Blowing the RICO Case

Chevron: "Let Them Eat Pizza!"

Originally posted on Amazon Watch's Eye on the Amazon blog. By Paul Paz y Miño.
Let them eat pizza!

Would people really offer a coupon for a free pizza and soda to families who just had a gas well blow up in their community, killing a worker and burning for days? People did.

In a move that would make Montgomery Burns proud, Chevron "apologized" to the community for the massive explosion of their fracking well in rural Pennsylvania by offering each affected family a coupon for free pizza from a local pizza joint.

This is one of those rare glimpses into a corporation's ethos, or lack thereof. Somewhere inside Chevron the decision was made that a $12 large pizza and a two-liter soda was proper compensation, or at least sufficient to pacify people for the "inconvenience" of having a huge explosion and toxic fire in their neighborhood. We called Bobtown Pizza this morning (with a story like this, you really gotta hear it for yourself to believe it) and at this point they are just wishing this whole thing would "blow over" (no pun intended).

Chevron's attitude in the US in 2014 has barely evolved from their attitude in 1964 in Ecuador's Amazon rainforest. Back then Chevron told villagers that oil was good for them, to rub it on their joints for arthritis! They sprayed it on the roads to keep down the dust and people walked on it for years, shoeless. All the while they were dumping billions of gallons of toxic waste into pits that drained directly into waterways used for drinking and bathing. Could they get away with that in Pennsylvania today? If it turns out that communities can no longer drink their tap water due to Chevron's fracking, will the company send them coupons for a case of Diet Mountain Dew?

We're not easily surprised by Chevron spokespeople saying horrific and ludicrous things anymore, but this was so tone-deaf that even we were impressed. We haven't been so in awe of Chevron's insensitive hubris since Sylvia Garrigo dismissed Ecuadorians' cancer and other severe oil-related health issues on 60 Minutes by saying, "I have makeup on, and there's naturally occurring oil on my face. Doesn't mean that I'm going to get sick from it." Check out this video, Great Moments In Stupid Chevron PR, for similar outrageous statements.

The friendly, unsuspecting people at Bobtown Pizza are bearing the brunt of complaints and crank calls due to community outrage. We'd suggest that unhappy citizens instead contact Chevron toll-free. Bobtown Pizza never expected a national backlash and coverage from CNN, Newsweek, and others, but they also weren't aware that Chevron is the largest corporate criminal on the run and on the hook for $9.5 billion in Ecuador. They didn't know that Chevron's Richmond refinery blew up not long ago and that they violated 62 EPA regulations there. They didn't know that over 40 environmental and human rights NGOs recently condemned Chevron's actions and over 100,000 people have sent messages to the US Senate to complain about their abusive legal tactics.
And Chevron, just in case you were wondering, the 30,000 Ecuadorians who sued you for polluting their homes and fouling their future will not be appeased by an order of empanadas and a six-pack of Inca Kola.

Thursday, February 13, 2014

How Chevron Might Have A Lawsuit Against Its Own Law Firm for Blowing the RICO Case

Chevron's "Dream Team" at the Gibson Dunn law firm has yet to come up with an explanation for its monumental mistake last week in undermining the company's RICO case against Ecuadorian villagers and their lawyers.  Chevron's team leader at Gibson Dunn, partner Randy Mastro, usually loves spinning to the media.  But even he has gone radio silent.

Last Friday, another partner at Gibson Dunn—Harvard Law School graduate Miguel Estrada—argued before a panel of judges from the 2nd Circuit Court of Appeals in Manhattan. The case being heard that day had nothing to do with the plight of Ecuadorians living with the toxic legacy of Chevron's pump-and-dump oil operations in their rainforest lands.

But the hearing itself—or at least one of the key arguments made—may have an enormous impact on the Chevron-Ecuador case.

From the blog of DC-based EarthRights International yesterday:
Chevron probably isn’t too happy with Randy Mastro and the rest of its dream team at Gibson Dunn & Crutcher right now. Gibson Dunn represents Chevron in its “sue the victims” case against a group of Ecuadorian villagers and their attorneys. The Ecuadorians won a $9.5 billion judgment in Ecuador against the company for massive pollution, and Chevron retaliated by filing a law suit under the Racketeering and Corrupt Organizations Act (RICO), claiming the Ecuadorian judgment was obtained through fraud.

Last week, however, in a completely separate case, Gibson Dunn may have shot the Chevron case in the foot, arguing to the Second Circuit Court of Appeals that a private party can’t seek an injunction under RICO. This is the opposite of the argument they’ve made in Chevron’s RICO lawsuit in the district court in New York.
Of course, in its retaliatory RICO lawsuit against the Ecuadorians and their longtime legal advocate Steven Donziger, Chevron is in fact seeking an injunction.

As Donziger told Law360 last week:
Chevron made three strategic decisions that together strip it of standing: refusing to challenge its liability for the pollution in Ecuador, dropping its damages claim in order to escape a jury trial and asking for a tailored injunction that only blocks Donziger and his Ecuadorean co-defendants from a cut of the multibillion-dollar judgment, rather than a worldwide anti-enforcement injunction.
Donziger and the Ecuadorians have argued all along that the RICO statute does not permit private parties to seek injunctive relief. Of course, Chevron—or more accurately, Gibson Dunn's Mastro —has repeatedly argued the opposite. Meanwhile, Judge Lewis A. Kaplan, who has brazenly promoted the Chevron RICO lawsuit, seems to think it's an open question. 

Back to EarthRights International's recent post:
If it is indeed an open question, it may not be open for much longer.

Last Friday, in Sykes v. Mel Harris, Gibson Dunn urged the Second Circuit to “confirm that private RICO claims for injunctive relief fail as a matter of law” – in other words, private plaintiffs cannot seek injunctions under RICO. If Gibson Dunn wins that argument, the decision will control Chevron’s case against Donziger and will doom Chevron in the lower court.
This, of course is a major Catch-22 for Chevron, as reporter Adam Klasfeld at Courthouse News wrote last week.  Klasfeld concluded that Gibson Dunn's Estrada could "scuttle [Chevron's] efforts" to fight off its $9.5 billion liability in the Ecuador case.

Klasfeld's article concludes with a quote from Christopher Gowen, a professor of ethics at the Washington College of Law at The American University in Washington, D.C.  a member of Donziger’s legal team, Gowen said:
"Gibson Dunn is correct to argue that there is no injunctive relief for a private party under the RICO statute," said Gowen, who serves as a legal ethics professor at American University. "The problem for the firm is that by doing so they acknowledge that their prosecution of the Chevron v. Donziger case has been a complete waste of their client's time and money and an abuse of the civil justice system. While I was troubled by the ethical conduct of Gibson Dunn on behalf of Chevron throughout the trial, I never imagined a day where their unethical conduct would destroy their own client's case."
The EarthRights blog points out that Gibson Dunn has a conflict of interest. And the party with standing to complain is none other than Chevron, the oil company that reportedly has paid the firm in excess of $1 billion for its work on the Ecuador case. EarthRights points out that Chevron might have a whopper of a legal claim against none other than Mastro and his partners.

That would be the ultimate poetic justice: Mastro himself might have to pay part of Chevron's obligations to its victims in Ecuador, should the villagers succeed in recovering their judgment.

For additional analysis on this shocking development, read this press release from Donziger's law firm:

Chevron Law Firm Gibson Dunn Concedes that Legal Basis for RICO Case Against Ecuadorians Is Invalid

And this legal motion filed recently by Donziger and his counsel in the RICO case:

Reply Motion in Support of Donziger’s Motion to Dismiss

In the above Reply Motion, Deepak Gupta, Steven Donziger’s appellate lawyer, attached Gibson Dunn’s Merits Brief in the Sykes v. Mel Harris case in which Gibson Dunn's Estrada spells out exactly why private parties cannot seek injunctive relief under RICO.

Advice to Gibson Dunn: Mr. Estrada and Mr. Mastro need to be re-educated about their ethical obligations.