Tuesday, May 23, 2017

Chevron Creating Fake News To Hide Environmental Crimes in Ecuador's Amazon

Chevron is again trying to spread fake news to try to distract attention from its environmental crimes and sham remediation in Ecuador, where the company is on the hook for a $9.5 billion liability and faces potential criminal prosecution for presenting fabricated evidence to a U.S. court.

Last week, we reported how dismissed Fortune reporter Roger Parloff resurfaced at Yahoo Finance with a completely unbalanced article on the case to help absolve Chevron of responsibility for the billions of gallons of toxic oil waste it admitted to dumping into the waterways and lands of indigenous people in Ecuador. (Here is a summary of the overwhelming evidence against Chevron as found by three layers of courts in Ecuador, where the company insisted the trial be held.)

Now we see the right-wing blog Hot Air is also blowing major hot air of its own in service of the Chevron propaganda machine.

Hot Air, which is connected to the Koch Brothers funding network outlined brilliantly by Jane Mayer in her book Dark Money, claimed in a recent blog that Chevron is the subject of a "shakedown" by the villagers and their lawyers. The blog then quotes none other than Parloff's unbalanced article published by Yahoo Finance in support.

Both Parloff and Hot Air used the occasion to promote Chevron's opposition brief to the U.S. Supreme Court in an appeal of a bogus "racketeering" decision that the company obtained from controversial New York trial judge Lewis A. Kaplan. That judgment resulted from a one-sided proceeding termed a "Dickensian farce" by one of the nation's leading lawyers.

Kaplan, who repeatedly bent over backwards to help Chevron, failed to disclose that he held investments in the oil company during the trial.

Chevron's latest court brief in the U.S. has little relevance to the company's ongoing liability in the case given that the judgment is being enforced against company assets in Canada and Brazil.

Both Parloff in his Yahoo Finance article and Hot Air downplayed the Canada enforcement action, where the affected communities recently won a unanimous decision from the country's Supreme Court. Canada is where Chevron is likely to be held accountable for its toxic dumping in Ecuador after two decades of forum shopping in courts spanning three continents.

(For a comprehensive history of Chevron's subterfuge in the case, see this appellate brief submitted by Steven Donziger, the longtime lawyer for the Ecuadorians and a primary target of the company's attacks. Here is a blog from a  lawyer at Earth Rights International explaining Chevron's fabricated evidence and illegal witness payments. Here is an explosive new report and press release that outlines Chevron's attempts to manipulate U.S. courts with false evidence.)

Both Parloff and the blog also ignore critical new evidence that shows Chevron "won" its decision from Kaplan after it illegally bribed a witness with at least $2 million in cash and benefits. The admittedly corrupt Chevron witness, Alberto Guerra, later admitted under oath that he lied about several critical issues in Kaplan's court while a forensic examination proved the falsity of Chevron's fake news that the judgment against it in Ecuador was "ghostwritten".

The world knows that Chevron produces and refines lots of oil. But few know the extent of its investments to manipulate public opinion to hide its wrongdoing in Ecuador and elsewhere. Parloff and Hot Air are vehicles for this strategy.

In the Ecuador case, Chevron has a long history of orchestrating payments to bloggers and using small right-wing websites to try to launder its propaganda. A few years ago, a pro-Chevron blogger named Alex Thorne tried to pass himself off as a legitimate journalist when he sent intimidating emails to funders of the environmental group Amazon Watch, which supports the Ecuadorian villagers.

Thorne also ran a website designed to attack Karen Hinton, the highly effective U.S. spokesperson for the Ecuadorian villagers. It turned out that while Thorne was targeting the Ecuadorians as a "journalist" he actually was married to a Chevron employee and being paid by the company.

For years Chevron has used the notorious public relations operative Sam Singer, who hails from the Roger Stone school of political mischief, to funnel money to bloggers to parrot its fake talking points. See here for background on the Chevron dirty tricks operation.

When Chevron couldn't impose its will on the small California town of Richmond -- where a catastrophic fire at a Chevron refinery in 2012 forced 15,000 residents to seek medical attention -- the company started its own local on-line website and called it The Richmond Times to make it look like a legitimate news outlet.

The hot air coming from the Hot Air blog on Chevron's growing problems in Ecuador is just more of the same.

Friday, May 19, 2017

Journalist Roger Parloff Blows It Again Over Chevron's Ecuador Pollution Case

Journalist Roger Parloff, who recently left Fortune magazine, has resurfaced as a writer for Yahoo Finance. But one thing that hasn't changed is his dishonest and unbalanced reporting in favor of Chevron in the historic Ecuador pollution case where the company faces a huge liability for its toxic dumping in the rainforest.

Parloff recently published a story on the case Yahoo Finance that completely ignored critical new evidence that devastates Chevron's defenses, including that its star witness admitted that he repeatedly lied on the stand after being paid $2 million by the company. The villagers who won the $9.5 billion judgment are currently enforcing it against Chevron's assets in Canada and Brazil. But Parloff also refused to explain the huge significance of legal developments in those two countries -- developments whose importance dwarfs developments in the U.S. phase of the proceedings.

As background, courts in Ecuador where Chevron insisted the trial be held found the company guilty of dumping billions of gallons of toxic waste in Ecuador's Amazon region, decimating indigenous groups and causing an outbreak cancer confirmed by several independent studies. Company officials led by CEO John Watson refused to pay the judgment and threatened the villagers with a "lifetime of litigation" if they persisted in pursuing their claims.

(See this New York Times story for background and this summary of the overwhelming evidence against the company. Here is the Ecuador Supreme Court decision issued in 2013 affirming Chevron's liability.)

Parloff's article focused largely on a narrow appeal to the U.S. Supreme Court by the villagers and their lawyer, Steven Donziger, over a retaliatory "racketeering" judgment obtained by Chevron in the United States from Judge Lewis A. Kaplan. That ruling, issued after the judge refused to seat a jury, was based on evidence fabricated by Chevron and presented via a company witness who claimed with no corroborating evidence that the Ecuador judgment was "ghostwritten" by the plaintiffs.

The sad spectacle of the Kaplan judgment -- where a U.S. trial judge tried to reverse a decision by a foreign country's judiciary -- is so bizarre and unprecedented that it has little relevance regardless of what the U.S. Supreme Court decides to do. Neither Kaplan nor the justices have the power to block enforcement actions in Canada and Brazil where all of Chevron's evidentiary problems with its lying witness will be on full display.

Already, in a very bad sign for Chevron, Canada's Supreme Court rejected the company's attempt to use Kaplan's false "findings" to block an asset seizure action filed by the Ecuadorians targeting some of the company's oil fields, refineries, and other assets in that country.

Kaplan's judgment also was based on a "Dickensian farce" of a proceeding in the words of prominent attorney John Keker, who withdrew his representation of Donziger in protest. Kaplan allowed Chevron's "evidence" to be fully presented while he barred all evidence of Chevron's toxic dumping and fraud in Ecuador that was used to find the company liable. He also excluded Donziger's counterclaims that outline Chevron's environmental crimes, sham remediation, and attempts to harass and silence company critics.

The latest U.S. Supreme Court appeal that attracted Parloff's attention will present an important test for the justices. The court should of course toss the Kaplan decision because of the false evidence and a myriad of other legal problems, including the chilling implications of letting wealthy corporations use the RICO statute to try to silence human rights victims and their lawyers. (For summaries and links to the various briefs, see here, here, and here.)

In his article for Yahoo Finance, Parloff also failed to mention that 19 international law scholars and 17 civil advocacy groups have urged the high court to reverse Kaplan's decision. Or that Earth Rights International, probably the leading environmental justice legal shop in the country, has condemned the Kaplan ruling as one based on illegal witness payments and other malfeasance.

Parloff instead used the platform of Yahoo Finance to reinforce Chevron's tired arguments designed to "demonize" Donziger who for years has led the battle against the company's fraud and corruption. (See this article in Rolling Stone.) Parloff also failed to mention that Chevron paid $2 million to the discredited witness who falsely claimed the judgment was written by the plaintiffs.

That Chevron witness, Alberto Guerra, admitted under oath in a separate proceeding that he lied about several critical issues before Kaplan. Separately, a new forensic analysis by one of the world's leading computer experts proved Guerra's "ghostwriting" story was false. Yet Chevron, Kaplan, and a federal appellate court continue to credit the Guerra testimony, casting a mighty large stain on the reputation of our federal judiciary.

This information about Chevron's use of Guerra as its paid stooge has been readily available in public legal filings for years. It recently was documented meticulously in an explosive new 33-page report called How U.S. Courts Got It Wrong In Chevron's Amazon Pollution Case. The report, released last week and written by lawyers for the Ecuadorians, demonstrates how Chevron's false evidence and fraud have infected the U.S. legal proceedings.

Again, Parloff ignored all of it.

When at Fortune, Parloff consistently wrote articles parroting the points in Chevron's legal arguments while squelching letters of dissent pointing out deficiencies in his reporting. Already, there are signs he has tried to delete comments critical of his article on Yahoo Finance.

One of those comments was posted by Aaron Page, a lawyer for the villagers. Page offered this about Parloff's apparent attempt to launder Chevron talking points through a legitimate news outlet:
This reporter [Parloff] is the master of hyperventilation. He was a critical asset of Chevron as it fanned the flames of outrage and indignation in the early days of the RICO case. Most of the allegations from those days were quietly dropped from the case (like Chevron's "demand" for an impartial jury to hear the case was dropped). To fill the gaps, Chevron... procured false testimony of a "bribe" and "ghost-writing" from an obviously corrupt individual. 
Page continues:
In other words, the RICO judgment is UNQUESTIONABLY founded on false evidence. Yet Kaplan, the Second Circuit, and now Parloff couldn't care less. Their hit job on Donziger is complete.
For more background on the history of dishonest pro-Chevron journalism offered by Parloff and two other legal journalists who repeatedly fanned outrage against Donziger and the Ecuadorian villagers, see this excellent blog by Kevin Koenig of Amazon Watch.

With this track record, the editors at Yahoo Finance might want to hire an extra fact checker to scrutinize Parloff's copy whenever he submits a story about the Ecuador environmental case.

Tuesday, May 16, 2017

Supreme Court Faces Major Test With Chevron's Facially Corrupt RICO Case

An explosive new report that details how U.S. courts endorsed Chevron's fabricated evidence in its facially corrupt RICO case against Ecuadorian indigenous villagers presents a major test for the U.S. Supreme Court. (See this press release summarizing the report.)

The 33-page report -- called How U.S. Courts Got It Wrong In Chevron's Amazon Pollution Case -- is absolutely devastating for Chevron's bogus civil "racketeering" judgment against Ecuadorian villagers and their counsel, Steven Donziger. That judgment was issued in 2014 by U.S. trial judge Lewis A. Kaplan following a unanimous decision a year earlier by Ecuador's highest court that Chevron was liable for $9.5 billion in environmental damages.

Now, the U.S. Supreme Court will have the opportunity to reverse what a leading commentator calls the "facially corrupt" Chevron RICO case. See here for a Huffington Post analysis by Aaron Page, an experienced human rights attorney. Page helped write the new report which rebuts in great detail 12 false or distorted "findings" by Judge Kaplan that were rubber-stamped by the Second Circuit Court of Appeals, the federal appellate court in New York that oversees Kaplan.

The background of the Amazon pollution case is illustrative of Chevron's abject bad faith in dealing with its pollution problem in Ecuador and the utter failure of U.S. courts to stop the company from abusing the civil justice system to evade paying for the harm it caused. Thousands of people in the affected region have either died or face an imminent risk of death as cancer rates have skyrocketed in the area where Chevron deliberately dumped billions of gallons of toxic oil waste.

After the Ecuadorian villagers originally filed their claims in the U.S., Chevron had insisted the trial take place in Ecuador and had accepted jurisdiction there. The company at the time filed 14 sworn affidavits before a U.S. judge praising the fairness of Ecuador's courts. Chevron clearly figured it could engineer a political dismissal of the case in Ecuador, which is exactly what the company tried to do but failed.

Then, as the trial in Ecuador proceeded and the evidence against Chevron mounted, the company started to trash the very court system that it previously had praised. Chevron officials threatened the villagers with a "lifetime of litigation" if they persisted in pursuing the case. "We will fight this until hell freezes over, and then fight it out on the ice," warned Charles James, Chevron's General Counsel.

Chevron then vowed never to pay the judgment and launched a "demonization" campaign against Donziger and the villagers, of which the RICO case was a central component. To attack Donziger and his colleagues, Chevron even hired the same public relations firm that ran the Swift Boat campaign against John Kerry in the 2004 presidential campaign.

In what can only be described as a shocking example of American judicial imperialism, Kaplan let Chevron's army of private lawyers commandeer his courtroom to attack the Ecuadorians and their counsel to try to taint the Ecuador judgment so the company could evade paying the judgment. Despite its surface swagger, Chevron displayed real cowardice when it came time to actually put its RICO evidence to the test.

Company lawyers apparently had so little confidence in their "evidence" that they dropped all money damages on the eve of trial to avoid a jury of impartial fact finders. Also at Chevron's insistence, Kaplan prohibited all evidence related to Chevron's contamination and fraudulent cover-up in Ecuador from being mentioned in open court.

The entire Kaplan RICO proceeding was akin to a "Dickensian farce" as described by prominent lawyer John Keker, who withdrew from defending the case in protest of Kaplan's biased behavior. The Chevron RICO strategy against Donziger was in fact part and parcel of the company's own racketeering scheme to undermine the valid Ecuador judgment.

In fact, when Donziger brilliantly counterclaimed Chevron before Kaplan with overwhelming evidence of the company's crimes and fraud in Ecuador, the judge predictably refused to let those claims be litigated. Only Chevron's fabricated and distorted evidence was allowed to be heard; the real evidence from the villagers and Donziger was barred.

This was judicial farce, pure and simple -- what the villagers describe as a "mockery of justice" from beginning to end. To get a feel for Kaplan's inappropriate behavior and outright hostility toward the Ecuadorian villagers, read this fascinating account from Harvard Law School graduate Marissa Vahring who worked on the trial team defending the RICO case. Here's another account of Chevron's corruption from a lawyer who works at the environmental group Earth Rights International.

The latest report -- How U.S. Courts Got It Wrong -- destroys what little is left of Kaplan's and Chevron's credibility in the RICO matter.

The new report explains that Kaplan's "findings" were based primarily on discredited testimony from an admittedly corrupt witness paid $2 million by Chevron to falsely claim the plaintiffs offered a bribe to the Ecuador trial judge.The witness, Alberto Guerra, later admitted under oath that he lied on key issues before Kaplan and a forensic report scientifically debunked his testimony.

Guerra also admitted paying and accepting bribes when he practiced law in Ecuador. "Money talks, but gold screams," Guerra told Chevron lawyers when he was negotiating his rich compensation package in exchange for becoming a company stooge. Yet Kaplan "credited" Guerra's testimony and the Second Circuit -- as is typical of appellate courts in most cases but should not have happened in this extraordinary situation -- deferred to the trial judge on this point without any independent analysis.

It later turned out that during the RICO trial, despite multiple calls for his recusal for bias, Kaplan hid the fact he had investments in Chevron. On two occasions, the Second Circuit held hearings on motions to remove Kaplan from the trial without this critical information that the judge refused to disclose. The big picture is that corporate corruption permeated Kaplan's federal courtroom to such a degree that it was almost too much for the appellate court to acknowledge, much less address.

Page stated the RICO case now presents a major test for the integrity of our highest court. "The simple question is whether the Supreme Court stand with the rule of law, or will it stand with Chevron's attacks on the rule of law," he said. Already, 19 law scholars and 17 environmental and human rights groups have weighed in with briefs urging the Court to reverse Kaplan's RICO decision.

Even if the Supreme Court declines review of Judge Kaplan's legal fiasco -- which is possible given that the Court accepts only about 75 petitions for review each year out of the thousands submitted -- the historical record of Chevron's lies and fraud is clear as the villagers proceed with asset seizure actions against the company in Canada and elsewhere. Already, Canada's Supreme Court has ruled in favor of the villagers while Brazil's courts have refused to block a separate enforcement action.

It will be interesting to watch Chevron lawyers react if they are forced to put Guerra on the stand in Canada without Judge Kaplan there to protect his credibility. Even Chevron's own lawyers might be forced by Canada's courts to explain their roles in coaching Guerra prior to his untruthful testimony in the RICO case.

Unlike Kaplan, who did all he could to rig the RICO trial in Chevron's favor, a trial judge in Toronto will assess the full evidence in an enforcement trial with neither fear nor favor. For Chevron, a neutral arbiter assessing its fabricated and distorted evidence is a recipe for a litigation disaster.

Will the Supreme Court Strike Down Chevron's Facially Corrupt RICO Case?

This is a blog from attorney Aaron Page reposted from the Huffington Post:

Okay folks, the briefs are in. (And online, except Chevron's opposition, which I've seen but which Chevron seems to be hiding from the internet.) Our side will still file a reply, but nonetheless it's go time on the petition to the Supreme Court to review the shameful U.S. lower court judgments in Chevron's unapologetically corrupt RICO attack on its Ecuadorian contamination victims and their lawyer, Steven Donziger.

The Donziger/Ecuadorian brief is here. Necessarily, its arguments are limited to the narrow legal grounds that justify the Supreme Court’s discretionary intervention at this point. (The Supreme Court receives around 8,000 petitions each year and agrees to hear on 60-80 of them, or less than 1%). Nonetheless, it sets out two strong reasons for review: (1) the disturbing implications of allowing a losing party in foreign litigation like Chevron to use the RICO statute to launch a collateral attack in its "chosen forum," i.e. its home-country courts, and (2) of allowing a party to sue in RICO solely for "injunctive" relief. This latter argument is significant because a party can demand injunctive relief without having to present its case to a jury. In this case, Chevron dropped all its money damages claims on the eve of trial so that only Judge Kaplan (the notoriously biased district court judge who stated on the record that Chevron was "a company of considerable importance to our economy" and that the Ecuador case was the product of the "imagination" of "American lawyers") would have the power to decide the case, not a jury.

Subsequently, a variety of scholars and civil society groups filed briefs outlining broader and yet more disturbing implications of allowing Chevron’s collateral attack to stand. For example, one group of leading organizations such as Friends of the Earth stated:
[We] regularly engage in First Amendment-protected activities similar to those that were found to be predicate acts under RICO in this case. [If the case is allowed to go forward, our] exercise of [our] First Amendment rights of free speech, association, and petitioning government will be severely chilled by the very real possibility that [we] will have to mount costly defenses to retaliatory litigation brought by deep-pocketed corporations whose conduct Amici publicly oppose.
Another group of organizations took a closer look at the deeply corrupt nature of the "evidence" that Chevron used to support its core claims in the case, such as the claim that there was a bribery agreement – a claim solely supported by the testimony of a "fact" witness, Alberto Guerra, to whom Chevron directed over $2 million in cash and benefits. (Paying fact witnesses for their testimony is illegal.) See more here, here, here, and here.

The Republic of Ecuador also filed a brief condemning the process of U.S. courts, in particular highlighting how U.S. courts repeatedly (but not surprisingly) misunderstood Ecuadorian law and procedure. In his 500-page opinion, the U.S. trial judge went on and on about how this or that was a "fraud" on the Ecuadorian court, under Ecuadorian law, that somehow required heroic efforts by a U.S. judge to step in and save the day. Please. Ecuador’s Supreme Court, the real expert in Ecuadorian law, considered the exact same allegations and summed up the reality of the situation:
[Chevron] never demonstrated fraud, which it has been claiming without any legal support. We reiterate that it has not proven any omission or violation of procedure that would give rise to the nullity sought. [Chevron’s] incessant harping in this regard departs from procedural good faith.
Just as important as all the briefs is the recent release of a damning new Report highlighting the corrupt foundations of Chevron's RICO case (e.g., its reliance on Guerra despite sign after sign of his corruption and falsity), and providing detailed responses to all the various secondary smears and allegations in the "demonization" campaign (Chevron's own words) that Chevron used to drive hysteria and momentum in order to get the case over the finish line.

The report paints an ugly picture of U.S. courts embracing, tacitly adopting, or even just tolerating extreme corruption and foul play by a U.S. company in its blatantly self-serving and out-of-bounds legal attack against an historic human rights case. Why would U.S. courts do this? There are surely some long and complicated answers to this question, but also some simple ones. Consider this quote by the district judge (Lewis A. Kaplan, effectively chosen by Chevron to hear the case), stated out loud from the bench in the opening days of the RICO case:
[W]e are dealing here with a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which every one of us depends every single day. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there because these folks [the Ecuadorians] have attached it in Singapore or wherever else [as part of enforcing their judgment].
It's just dumbfounding how biased this is – and just ridiculous. That the judge's desire to protect Chevron could be driven to such levels of ridiculousness speaks to the depth of the bias. Or consider this quote, also from the bench in a related proceeding before the RICO case even began:
The imagination of American lawyers is just without parallel in the world. It is our one absolutely overwhelming comparative advantage against the rest of the world, apart from medicine. You know, we used to do a lot of other things. Now we cure people and we kill them with interrogatories. It’s a sad pass. But that’s where we are. And Mr. Donziger [with the Ecuador judgment] is trying to become the next big thing in fixing the balance of payments deficit. I got it from the beginning.
Boy, you couldn't see where this case was going, could you?

Where it went was a place just as ugly as these quotes suggest – in fact, uglier, because as detailed in the amicus and in the new report, Chevron sunk to new depths by paying Guerra massive sums of money to invent a "bribery" claim, and Judge Kaplan bought it.

What we are left with is a patently disgraceful picture of a swaggering U.S. company which (1) engineered a dismissal of environmental claims to Ecuador, (2) didn't like the result it got in Ecuador, (3) came running back to its home country courts for protection; and (4) despite a mountain of international and domestic legal principles that should have prevented it, got the U.S. courts to jump to its aid. Specifically, it got a "freestanding determination of the facts" (Chevron's words) that is unconnected from any specific legal relief but that gives Chevron a new weapon to wave around in enforcement jurisdictions (as the Ecuadorians, as they should and must, go about enforcing their judgment in various countries around the world).

Ultimately, the RICO judgment should not stop any of these enforcement actions, because those non-U.S. courts are perfectly capable of coming to their own views on Chevron’s bogus "fraud" claims and are not going to roll over to corrupt/paid evidence the way U.S. courts did. But it will certainly give Chevron yet more delay, in a case which has already gone on for nearly 25 years while each year more and more victims die and new generations of children are poisoned.

The Supreme Court has one last chance to stop Chevron’s self-serving legal circus from becoming law of the land and a stain on U.S. legal history. It has a chance to do something to help the underlying human tragedy.

The odds are overwhelmingly against review as a general matter, but we must still hope.

Friday, May 12, 2017

17 Environmental Groups Criticize Chevron Before Supreme Court for Faking Evidence

Seventeen prominent environmental and human rights groups have gone to the U.S. Supreme Court to criticize Chevron and its legal team for fabricating evidence in the historic Ecuador pollution case and for violating the Free Speech rights of the company's critics.

The filing of the latest "friend of the court" briefs (see here and here) from the civil society groups is profoundly important. It is another example of how Chevron continues to lose support in the Ecuador case after being hit with a historic $9.5 billion environmental judgment in 2013 for dumping billions of gallons of toxic waste into the Amazon rainforest, decimating indigenous groups and causing an outbreak of cancer. That judgment was affirmed unanimously by Ecuador's Supreme Court in the forum where Chevron had accepted jurisdiction.

The amicus briefs before the U.S. Supreme Court underscore why Chevron officials and company lawyers might be subject to sanctions, or even criminal prosecution, for intentionally presenting fraudulent evidence and for illegally paying for favorable witness testimony.

The latest briefs urge the justices to reverse a decision from a retaliatory "racketeering" (or RICO) case filed by Chevron in New York before Judge Lewis A. Kaplan targeting the villagers and their lawyers. Chevron tried to use its false evidence in that case to undermine the Ecuador judgment and to silence the company's growing chorus of critics, including some of its own shareholders who have challenged company management over its mishandling of the case.

Called a mockery of justice by the villagers, the Chevron "racketeering" case had no real legal basis and was unprecedented in the 241-year history of the United States, according to another amicus brief submitted by 19 law scholars and this appeal by New York human rights attorney Steven Donziger.

Those briefs demonstrate that prior to Chevron's case before Kaplan, a U.S. court had never before permitted a party that had lost a judgment in a foreign court where it had accepted jurisdiction to come home to collaterally attack that judgment -- a recipe for judicial chaos and unending forum shopping as litigations jump across countries and continents with no final resolution, as the law scholars emphasized.

The law scholars told the justices that Kaplan's decision not only violates international law, but puts the entire U.S. government in violation of international law by letting a solitary America trial judge try to dictate to all foreign judges from all countries how they should rule on a case. Kaplan tried just that by purporting to block the villagers from collecting on their judgment anywhere in the world.

The Ecuador judgment was affirmed in 2013 after three layers of courts in Ecuador found that Chevron had dumped billions of gallons of toxic oil waste into the rainforest, decimating indigenous groups and poisoning natural water sources relied on by tens of thousands of people. (For a summary of the overwhelming evidence against Chevron, see here.) After betraying its promise to pay any adverse judgment in Ecuador, Chevron filed the "racketeering" case and saw Kaplan make what can only be described as a bizarre ruling from his Manhattan courtroom.

Kaplan ruled that as a general matter Ecuador's entire judiciary was "illegal" and therefore incapable of producing valid court judgments. He did this after refusing to consider any of the voluminous scientific evidence that was relied on by Ecuador's courts to find Chevron liable. The weakness of the decision is that it is utterly unenforceable in other countries. More to the point, it is a shocking example of American judicial imperialism.

Kaplan's decision predictably has been rejected in Canada, where courts have given the villagers the green light to try to seize Chevron's assets with the unanimous backing of the country's Supreme Court. Courts in Brazil are also allowing an enforcement action against Chevron's assets in that country to proceed. It is only a matter of time before Chevron is forced to pay up in full given that it has an estimated $15 billion of assets in Canada and another $3 billion in Brazil.

One of the new amicus briefs, filed by Amazon Watch and Rainforest Action Network, attacked Chevron for illegally paying an admittedly corrupt witness $2 million in cash and benefits to claim that the Ecuador judgment was "ghostwritten" by the plaintiffs. That witness, the former Ecuadorian judge Alberto Guerra, offered no corroborating evidence for his claim and later admitted under oath that he lied about key parts of the story in Kaplan's court.

The U.S. federal appellate court that oversees Kaplan, in reflexively affirming his ruling, ignored the undisputed evidence that Guerra lied and that his ghostwriting story has been completely debunked by new scientific evidence that became available after the end of the RICO trial.

Paul Paz y Mino, Associate Director of Amazon Watch, offered this powerful comment in a press release about the need for the Supreme Court to review the flawed U.S. court decisions:
It is imperative that the Supreme Court take action to stop what might be one of the most disturbing abuses of our civil justice system in history. To avoid compensating its victims in Ecuador, Chevron bribed a witness, fabricated evidence, and committed crimes and fraud before a U.S. court.
Erich Pica, from the U.S. environmental group Friends of the Earth, also criticized Chevron for using the RICO case as a pretext to intimidate company critics by issuing them subpoenas seeking privileged documents. Chevron served the subpoenas on dozens of environmental groups, bloggers, journalists, consultants and lawyers. All the recipients had tried to the help the Ecuadorian villagers or expose some aspect of Chevron's wrongdoing in Ecuador.

Pica said:
Corporate accountability advocates must not be at risk from legal action by U.S. corporations simply for expressing their First Amendment rights to free speech. As it stands, this [RICO] decision endangers the very foundation of human rights and environmental advocacy. That is why Friends of the Earth has filed this brief along with others in the environmental and human rights community.
Chevron suffered another blow when the 19 law scholars also filed an amicus brief in support of the Ecuadorian communities. Another prominent environmental group, Earth Rights International, published a riveting account of how Chevron tried to sabotage the Ecuador trial via corruption and improper pressure. Kaplan ignored evidence of Chevron's corruption in the Ecuador trial as well.

The Ecuador pollution matter clearly has become groundbreaking litigation in the global corporate accountability movement. It threatens the business model of the entire fossil fuel industry which relies to a shocking degree on externalizing its pollution costs to keep profits flowing at artificially high levels. As Chevron's profits gush, cancer rates in Ecuador's Amazon soar.

The Ecuador pollution case is also a major test for the U.S. judiciary. That judiciary thus far deserves an abject failing grade for lending its stamp of approval to Chevron's corruption and Kaplan's abuse of judicial power.

Compared to Ecuador's judiciary, which had the institutional fortitude to resist Chevron's attempts to corrupt the proceedings, U.S. courts thus far have bent over backwards to bless Chevron's bribery of a witness and other outrageous misconduct. It's a sad pass to say the least.

The Ecuador pollution litigation now presents a major test for the integrity of the U.S. Supreme Court. The justices can choose either to step up and defend the rule of law, or allow the egregious injustice committed in the RICO matter to continue to stain our nation and its court system.

Friday, March 31, 2017

Chevron's False Evidence in Ecuador Now Before U.S. Supreme Court

Chevron's false evidence used to fraudulently cover up its legal responsibility for a $12 billion pollution judgment in Ecuador has been put before the U.S. Supreme Court. This is a real test of the High Court's own ability to police lower court judges who get involved in judicial corruption.

The filing by Steven Donziger, the longtime U.S. lawyer for the affected rainforest communities, is the latest chapter in the campaign to hold the oil giant accountable for dumping billions of gallons of oil waste and causing a humanitarian crisis in the rainforest. Chevron lost the case in Ecuador, leading to a $12 billion judgment that is currently being enforced in Canada.

The company retaliated against Donziger and his clients by filing a civil "racketeering" (RICO) case in U.S. court before a judge who clearly was licking his chops to send a message to the courts of Ecuador and the rest of the developing world to keep their paws off a powerful U.S. oil company -- even if meant accepting distorted, untruthful, and corrupt evidence.

From a new press release on the filing:
Ecuadorian rainforest villagers and their longtime U.S. human rights lawyer have presented proof of Chevron's bribes, false evidence, and fraud to the U.S. Supreme Court as part of a petition to overturn an unprecedented RICO decision by controversial U.S. trial judge Lewis A. Kaplan.
The petition to the U.S. Supreme Court points out that the RICO decision in favor of Chevron is the product of falsified evidence and judicial bias by the trial judge, the aforementioned Mr. Kaplan. After repeatedly signaling his support for Chevron, Kaplan refused to seat a jury and let Chevron drop all damages claims on the eve of trial to prevent a group of impartial fact finders from deciding the case.

Chevron's false evidence included testimony from an admittedly corrupt Ecuadorian witness, Alberto Guerra. Chevron paid Guerra a $2 million bribe, including $38,000 in cash out of a backpack, to become its homegrown patsy. At the time, he had been making $500 per month.

Chevron lawyers led by Randy Mastro then coached Guerra for 53 consecutive days before he took the stand in Kaplan's courtroom. "Money talks, but gold screams," Guerra told Chevron's lawyers when he negotiated his "fee" for testifying. Chevron also gave Guerra health care, a car, an immigration lawyer, and paid his taxes after he was moved to the U.S.

Needless to say, having enriched himself at Chevron's expense, Guerra had virtually no credibility when he took the stand in Kaplan's courtroom. What little he had disappeared completely when he blatantly lied under oath under the bright lights, as was evident to most observers.

Even though he was prepped meticulously by Chevron, Guerra could not keep his story straight. He claimed the villagers arranged for a bribe to the trial judge so they could write the judgment against Chevron. But that story fell apart when a forensic examination of the judge's office computer showed he wrote the judgment by saving it as a Word document at least 480 times in the weeks leading up to its issuance. Guerra had claimed it was given to the judge on a flash drive.

No corroborating evidence ever emerged that a bribe of the judge occurred.

Guerra also admitted to perjuring himself before Kaplan on several key points when he was cross-examined in a separate international arbitration proceeding after the end of the RICO trial. Yet Kaplan -- who repeatedly called the Ecuadorians the "so-called" plaintiffs and who made comments widely construed as racist -- credited Guerra in an obvious attempt to help rescue Chevron from the entirely appropriate liability imposed by Ecuador's courts. Here is a summary of the overwhelming evidence against Chevron in the Ecuador trial.

"Money talks, but gold screams." Chevron's lying witness, Alberto Guerra.

Given that BP has paid out about $50 billion for its Gulf of Mexico spill, Chevron actually got it off easy for its far worse contamination of the rainforest. The company abandoned roughly 1,000 open-air waste pits gouged out of the jungle floor which continue to contaminate soils and groundwater to this day. Most were built in the 1970s. Cancer rates in the affected area have skyrocketed.

Kaplan's mishandling of the case becomes even more outrageous when one considers it was Chevron that insisted the trial take place in Ecuador. In the 1990s, the company filed 14 affidavits in U.S. federal court praising Ecuador's judicial system. To help Chevron get out of the conundrum of having lost in the forum of its choosing, Kaplan determined that Ecuador's entire judicial system was incapable of producing fair verdicts even though Chevron had repeatedly lauded the country's courts.

It also turns out that Kaplan never revealed that during the RICO trial he held investments in Chevron. In an act utterly devoid of ethics, he never disclosed his financial connection to the company even though Donziger and his colleagues twice tried to remove him from the case for bias.

Kaplan also called the Ecuador litigation "mud wrestling" and said Donziger's goal was to use the case to "fix the balance of payments of deficit" of the United States.  "I got it from the beginning," he said. And that was before he held as much as an evidentiary hearing.

Whether the U.S. Supreme Court will step in to police what can only be described as judicial corruption remains to be seen. But don't hold your breath. In recent years, our appellate courts shown little but hostility to foreign plaintiffs who come to our shores to hold American companies accountable for their misconduct abroad.

It is important to remember that Chevron's dirty work in manufacturing evidence for Kaplan was farmed out to the U.S. law firm Gibson Dunn & Crutcher in a practice group headed by the notorious Mastro, the former deputy to New York Mayor Rudy Guliani. Known for his divisive approach to politics, Mastro was largely hated in New York's black and Latino communities when he worked as a public official. It was Mastro who steered the case to Kaplan.

Donziger called Mastro "a corporate hit man of the worst order."

"My experience is that Mastro and his cohorts will do virtually anything, including paying witnesses massive sums of money, to help rescue clients in trouble if the fees are high enough and they believe the judge is friendly enough to protect them," Donziger said. Federal judges twice sanctioned Gibson Dunn for using the discovery process to harass the Ecuadorians. (See here for a history of the firm's many ethical problems.)

Called a "warhorse lawyer" by Rolling Stone magazine, Donziger said this in the press release:
It is our view that Kaplan and the Second Circuit owe the people of Ecuador an apology for refusing to consider evidence that blows up Chevron's false narrative. This is an ongoing stain on the American judiciary in the eyes of the world and it will not go away unless and until the Supreme Court acts.
A larger issue is that Chevron created the RICO strategy as a playbook for polluting corporations to retaliate against human rights lawyers and their clients who hold them accountable. The playbook is designed to threaten advocates who dare challenge the false company narrative. It no doubt represents a grave threat to social justice advocacy. Retaliatory corporate lawsuits are an intimidation tool designed to drive away lawyers and leave human rights victims utterly defenseless.

Chevron even admitted in an email that its strategy was "to demonize Donziger" to distract attention from the fact is deliberately dumped oil waste into the rainforest, decimating indigenous groups and causing a humanitarian crisis that has killed or threatens to kill thousands.

Chevron has used at least 60 law firms and 2,000 lawyers, at a cost in excess of $2 billion, to try to run Donziger and his colleagues off the case. It has not worked. Since Chevron launched its attacks in 2009, the company has lost the underlying case in Ecuador; seen it affirmed unanimously by Ecuador's Supreme Court; and seen Canada's Supreme Court unanimously reject Chevron's attempt to block a seizure action against its assets in that country.

Chevron knows it is in serious trouble in the Ecuador matter. Its strategy is to keep kicking the can down the road, thinking it will be cheaper to pay up far in the future.

In the meantime, Donziger and his clients have attracted top legal talent to their cause -- including John Keker of Keker & Van Nest in San Francisco, Alan Lenczer of Lenczer Slaght in Toronto, and Sergio Bermudes who is one of the top litigators in Brazil. Many other law firms are helping as the villagers maintain enforcement actions against Chevron to force compliance with the judgment.

Chevron CEO John Watson and General Counsel R. Hewitt Pate, who make a combined $30 million annually while the average annual income of their victims is about $1,000, have very little to show for their jihad against the Ecuadorians. Their problem is that regardless of whether the U.S. Supreme Court decides to take the case, the horse has escaped the barn.

Having decided to litigate elsewhere, there is now nothing a U.S. court can do to rescue Chevron from its growing financial liability to the people of Ecuador. But there is much the High Court can do to restore our judiciary in the eyes of the world and protect the First Amendment rights of social justice advocates.

It can start by using the Chevron pollution case to sanction Kaplan for letting a major American oil company try to evade liability by corrupting our system of justice with lies, fraud, and bribes.

Thursday, March 9, 2017

Why Canadian Courts Care about Justice in Ecuador

Reposted from Huffington Post.

Marta Isabel Arrobo, 49, recalls the numerous health problems she and her family have encountered living in close proximity to several pits of the Sur-Oeste Station. Photo credit: Amazon Watch
Marta Isabel Arrobo, 49, recalls the numerous health problems she and her family have encountered living in close proximity to several pits of the Sur-Oeste Station. Photo credit: Amazon Watch

Jay Cameron asks some important questions in his deeply flawed pro-Chevron opinion piece about one of the biggest environmental crimes in history. We think he deserves some answers, but despite repeated requests the Financial Post declined to even respond to our requests to publish this response. Fortunately, here we can provide the answers to Cameron's questions, but some basic facts about the case that Cameron gets wrong must be corrected first.

First, the title of the piece itself is false, since U.S. courts didn't "originally rule" in the Chevron case. In 2011, after almost two decades of legal wrangling and based on thousands of scientific samples – most of which were provided by Chevron itself – an Ecuadorian court ruled Chevron liable for the amount of US $18 billion to pay for environmental cleanup, health care costs and punitive damages for the crimeadmitted to by Chevron – of deliberately dumping over 18 billion gallons of toxic oil drilling water into the once pristine Amazon rainforest, home to 30,000 inhabitants. This trial took place in the venue of Chevron's choice: Ecuador. The "original ruling" on that decision was the Ecuadorian appeals court and later its Supreme Court, which eliminated the punitive damages on constitutional grounds and halved the judgement to US $9.5 billion. Those courts dismissed Chevron's fraud claims after considering the "evidence." Furthermore, the civil suit brought against Chevron was perfectly legal in Ecuador since the "release" given by a prior Ecuadorian administration specifically did not protect Chevron from civil claims, a fact that Chevron itself did not dispute when it argued that Ecuador was the proper venue for this case.

Mr. Cameron refers to "court-tested proof" of fraud in Chevron's retaliatory U.S. suit filed after the Ecuadorian verdict. That is false. In fact, it might interest Mr. Cameron to know that not a single piece of evidence about the actual contamination was even permitted in that trial. Cameron also omits the fact that Chevron's fraud claims were based almost wholly on the testimony of a corrupt ex-judge who later admitted, during another Chevron forum-shopping legal case, that he lied about the alleged bribe. Worse yet, the actual "proof" – the forensic evidence about the authorship of the original Ecuadorian judgment – was not considered by the US court, despite the fact that it validates the Ecuadorian plaintiffs' claims that the judgement was not ghost-written. The Canadian courts, however, were made aware of these facts. They also know about the leaked Chevron videos showing their own technicians finding toxic contamination at former well site Chevron swore to have completely remediated (more evidence that Kaplan refused to allow in his court despite Chevron's lawyers having authenticated them).

Ultimately, the courts in Canada have seen through Chevron's attempt to abuse the legal system with its might and fabricate false stories to escape justice for a crime that still festers in 1,000 unlined open-air pits like scars across the Amazon. Those same courts also realize that Ecuadorians are still dying today from contamination from those pits. They will offer Chevron a chance to explain itself in a trial and Chevron is perfectly welcome to put its key witness on the stand. But will they risk it, since he has already admitted to having lied for them in exchange for a multi-million dollar payoff?

To answer Mr. Cameron's question, the reason the Canadian courts considered the valid claims of the 30,000 Ecuadorian victims of one of the worst corporate crimes in history is because they realize that facts and justice do, in fact, matter.

Tuesday, January 31, 2017

Part of Canadian Judge's Decision a Slap in the Face To Human Rights Victims Worldwide

After being forced by Chevron to litigate for an astonishing 24 years, Ecuadorian indigenous villagers fighting for their own survival are now set to seize the company's assets in Canada to pay for a court-mandated clean-up of what is probably the world's worst oil-related environmental disaster.

But Canadian trial judge Glenn Hainey, either through ignorance or by making an old-fashioned mistake of corporate law, has just put up a potential roadblock in this historic campaign. In so doing, he inadvertently has damaged the cause of human rights and helped smooth the way for corporate polluters like Chevron to obtain impunity for their environmental crimes.

In a decision last week, Hainey allowed the Ecuadorian villagers to try to seize Chevron's assets in Canada to force the company to pay for its $12 billion environmental judgment in Ecuador. That's a huge victory for human rights. But oddly, Hainey also ruled that the assets in the oil giant's wholly-owned subsidiary in Canada were off-limits to collection.

Given that most of Chevron's estimated $25 billion worth of assets in Canada are held in the company's subsidiary (called Chevron Canada), that could be a big problem for collection if allowed to stand. We believe this part of Hainey's decision will be swiftly reversed, as was a previous trial judge's decision in favor of Chevron on similar grounds.

As background, Chevron has admitted to abandoning 1,000 toxic waste pits on indigenous ancestral lands in the Ecuadorian rainforest. Five indigenous groups have been decimated and are fighting for survival. The company also confessed that it deliberately dumped billions of gallons of toxic oil waste (known as "production waters") into streams and rivers of Ecuador, causing an outbreak of cancer in the affected area as confirmed by several independent health evaluations.

Hainey's decision has dramatic and even terrifying implications for the Ecuadorian villagers and all human rights victims. The thinking behind it explains why all too often the fossil fuel industry feels it can run roughshod over the planet while externalizing the costs of pollution to taxpayers without ever being held accountable in a court of law.

For context, Chevron has 1,500 wholly-owned subsidiaries around the world. Most of these subsidiaries, like many of those the company has set up in Canada, have no operations but are used for tax avoidance purposes and to avoid liability. Hainey ruled that all Chevron and other corporate polluters have to to do to avoid liability is to stuff their high-value assets (like oil fields, refineries, and pipelines) into a paper subsidiary and leave it at that.

Under Hainey's stunning theory, communities like those in Ecuador that win court judgments over environmental pollution are left out in the cold even though they adhere to the rule of law and fight for decades to win court judgments that get upheld on appeal.

What's really crazy about the logic behind the ruling -- and extremely unfair -- is that Chevron gets to keep all the profits from its subsidiaries, but the subs themselves are not allowed to be used to pay the company's debts. Chevron Canada pays about $3 billion annually in dividends to its sole shareholder Chevron yet is immune from any effort to collect a debt against its patron.

American law professor Aaron Marr Page recently published a brilliant deconstruction of the Hainey decision in the Huffington Post that should be a must-read for those who want to understand how such an unjust result can emerge from an apparently well-meaning judge.

After pointing out that Chevron has engaged in many years of forum shopping, judicial sabotage, and falsification of evidence to evade paying for its pollution in Ecuador, Professor Page writes:
Judge Hainey essentially ruled that a multinational fleeing a valid court judgment that hides its assets in a maze of paper subsidiaries can completely insulate itself from paying its obligations, while losing nothing in terms of profit or control... The decision stands as a dangerous precedent for the many other corporate accountability claims that are currently underway in Canadian and other courts.
Professor Page continues:
[Hainey] says to those claims that even if you prevail at the jurisdiction and the merits/liability stages, even if you sustain your victory on appeal, here is yet another barrier that could prevent you from merely collecting on a successful judgment. The chill this could cast more broadly on efforts to enforce human rights norms is obvious.
Professor Page also underscored that Hainey's fundamental error was that he used the wrong legal analysis of the corporate separateness defense raised by Chevron.

The real issue that Hainey missed is that there is a $12 billion judgment against Chevron based on voluminous record evidence documenting in great detail the company's pollution in Ecuador. The decision was affirmed unanimously by Ecuador's Supreme Court in the country where Chevron accepted jurisdiction. Chevron is a scofflaw debtor and no different than a parent who owes child support and flees to another state to evade paying.

The issue before Hainey was simple: Chevron Canada is a Chevron asset that obviously can be used to seize a debt owed by Chevron under basic legal principles adhered to by all civilized nations and codified in Canada's Execution Act. It's no different than a court ordering the seizure of the car or bank account of a parent to force payment of court-ordered child support.

Instead of adhering to this bedrock principle of law -- creditors have the right to seize a debtor's assets to satisfy a debt --  Hainey took Chevron's bait and went on a radical tangent by engaging in a "pierce the corporate veil" analysis which has no applicability to this enforcement action. He then bailed out Chevron by claiming Chevron Canada is a "separate" company even though it is totally owned and controlled by Chevron and 100% of its revenues flow up to Chevron as dividends.

But even under the incorrect "pierce the corporate veil" analysis, Hainey still got it wrong. In the modern globalized world, it is preposterous to think a company can avoid liability in one country by moving its assets to a paper subsidiary in another that it totally controls and then claim it is a "separate" company.

Hainey never should have succumbed to Chevron's pressure and used the "pierce the corporate veil" analysis. That analysis should apply only when there is a judgment against a subsidiary that has insufficient assets, forcing the creditor to go after the parent. In the Ecuador case, we have the opposite situation. There is a judgment by the villagers against a parent (Chevron) that refuses to pay and is a scofflaw. The subsidiary is simply one asset of the parent that could be seized to satisfy the judgment and force the parent to respect the rule of law.

When one understands Chevron's quarter-century of abuse of the civil justice systems in Ecuador and the United States, Hainey's decision becomes even more bewildering.

One wonders if he was cowed by the 30 or so Chevron lawyers from powerful law firms who showed up in his court during a four-day motions hearing last September. Most of them stared him down while only four or so of the lawyers actually did the argument.

The tab in legal fees to Chevron for what appeared to be a four-day exercise in judicial intimidation was an estimated $500,000. But that's nothing compared to the $2 billion Chevron has paid to hire 60 law firms and 2,000 lawyers to fight the villagers since the inception of the case in 1993.

While the affected villagers make around $500 per year on average tilling contaminated land courtesy of Chevron, Chevron grosses about $250 billion per year and is the third largest corporation in the U.S. Chevron CEO John Watson takes home around $30 million per year -- or 60,000 times as much as each of his victims in the rainforest.

Hainey might remember that Chevron originally fought for ten years to avoid jurisdiction in the United States. The company filed 14 sworn affidavits before U.S. courts praising Ecuador's courts as fair and accepted jurisdiction in Ecuador as a condition of the change of venue. But once the scientific evidence mounted against it in the Ecuador trial, Chevron sold its assets in the country and started to attack the court system it had previously praised.

Hainey's reasoning no doubt will be recognized as extremely disturbing by Canadian appellate courts, which have a long history of being open to the claims of human rights victims. A previous trial judge tried to block the enforcement trial in 2013 only to be unanimously overturned by two Canadian appellate courts, including the country's Supreme Court.

While Hainey closets himself behind mechanical arguments, human rights victims the world over rightly shudder at his reasoning. Courts like those in Ecuador make valiant efforts to advance the rule of law to hold polluters accountable. To be undermined by a trial judge in a faraway land is both demoralizing and a blow to civil society institutions everywhere.

People actually die from pollution as a result of delays produced by incorrect legal decisions.

As said, Canada's Supreme Court already blocked Chevron's earlier attempt to stop the Ecuadorian villagers from launching what in the commercial context would be considered a routine asset seizure action. Canada's appellate courts should order Chevron to defend itself in a speedy enforcement trial that will have zero tolerance for further litigation abuse.

Monday, January 23, 2017

In Canada, Chevron Faces New Nightmare Scenario Over Ecuador Pollution Liability

A Canadian trial judge on Friday issued a ruling allowing indigenous villagers in Ecuador to try to seize critical Chevron assets in the country to pay for the clean-up of the billions of gallons of toxic waste the company dumped into Ecuador's rainforest. The ruling has enormous implications for the rule of law, the corporate accountability movement, and for Chevron shareholders.

After five years of obstructionism by Chevron in Canada, Judge Glenn Hainey of the Ontario Superior Court of Justice finally gave the green light for the rainforest communities to have a trial to target Chevron assets to pay the $12 billion tab needed to remediate their ancestral lands. The affected communities filed their enforcement action in Toronto in 2012 after winning a court battle the previous year in Ecuador that awarded them the damages.

Chevron refused to pay the judgment, selling off its assets in Ecuador and hiding behind narrow technical arguments. Chevron had accepted jurisdiction in Ecuador and later was found to have committed fraud in the trial by falsifying evidence, trying to hide contamination from the court, and engaging in a sham remediation.

Here are some of the important implications from the latest Canada decision:

Chevron has definitively lost its bid to avoid an enforcement trial in Canada. Chevron used every technical defense in the book to avoid the Canada enforcement trial. Even Canada's Supreme Court ruled against Chevron. Now it must face a terrifying day of reckoning over how its key witness, Alberto Guerra, has lied under oath and that his fundamental story about judicial bribery is false.

Chevron's U.S. lawyer Randy Mastro will face enormous risk. American lawyers Randy Mastro and Avi Weitzman of the U.S. law firm Gibson Dunn violated the law by arranging for Guerra to be paid $2 million for his false testimony in a farcical retaliation trial in the U.S.  Mastro and his team coached Guerra for 53 consecutive days before he testified; Guerra later admitted lying on the stand. Gibson Dunn's obstruction of justice will be front and center in the Canada proceeding.

Look for Chevron's executives to try to settle before the trial: Chevron shareholders already are up in arms over management's mishandling of the Ecuador liability. Look for embattled CEO John Watson to order his lawyers to try to settle the case before Guerra is forced to take the stand and the company's entire narrative falls apart.

Chevron's strategy of perpetual delay just got shellacked. Trial judge Hainey tossed out two of the company's main defenses which already had been litigated and rejected by three layers of courts in Ecuador. The company will be kept on a short leash in Canada, undermining its strategy of delaying any judicial procedure that could hold it accountable on the merits.

Chevron is kidding itself if it thinks its Canadian subsidiary is immune from liability. The part of the Hainey decision that immunized Chevron's wholly-owned subsidiary from enforcement runs counter to logic, violates the spirit of a prior decision of the Canada Supreme Court, and is likely to be reversed on appeal.  Ten separate Canadian appellate judges already have reversed a similar ruling when issued by a prior trial judge in 2013.

Karen Hinton, the spokesperson for the villagers, was forceful in her response to the latest development. She called it a "resounding victory for Ecuadorian indigenous groups and farmer communities who have struggled for more than two decades to clean up its toxic waste."

Hinton added:
The court sent Chevron a powerful message that it can no longer ride the legal merry-go-round and re-litigate the same discredited defenses in different courts as part of its strategy of delay...The villagers expect to proceed later this year with their seizure of Chevron's assets to force the company to respect multiple court judgments that found it guilty of dumping billions of gallons of toxic waste into the waterways of Ecuador, causing an outbreak of cancer and other harms afflicting thousands of people. Ultimately, we are confident that Canada's courts will hold Chevron fully accountable for its outrageous and criminal conduct in Ecuador.
Carlos Guaman, an Ecuador community leader and the executive director of the coalition that brought the enforcement action, said he wanted to "thank" Canada's courts "for sending a strong message to Chevron that its outrageous strategy of blocking justice will soon end."

Thursday, January 5, 2017

Chevron's Massive Pollution In Ecuador Frames Death of Legendary Nurse Rosa Moreno

Rosa Moreno, the legendary nurse in Ecuador who spent three decades treating children and others afflicted with cancer in the area of Chevron's oil pollution in the Amazon rainforest, has now herself succumbed to cancer, the Amazon Defense Coalition reported on Wednesday. One might reasonably question whether Chevron's refusal to clean up its pollution in Ecuador played a role in this tragic event.

Moreno, a splendid human being well-known to those of us who write The Chevron Pit, died this week in the Amazon village of San Carlos after a two-year battle with the illness. Moreno, 55, had hosted a long line of celebrities -- including Brad Pitt and the actor Trudie Styler -- in her tiny health clinic in the town of San Carlos as she tried to sensitize the world to the plight of people who won a historic $9.5 billion judgment against Chevron in 2013.
Rosa Moreno in front of the San Carlos clinic
San Carlos is akin to Love Canal in the United States, only worse. For decades the village has been home to dozens of toxic waste Superfund sites that include open-air waste pits filled with oil sludge that that were built by Texaco in the 1970s and abandoned. Texaco installed pipes to run the toxic waste into nearby streams and rivers relied on by locals for drinking water. The pits were documented in a report on 60 Minutes and in the documentary Crude by acclaimed filmmaker Joe Berlinger.

Chevron bought Texaco in 2001 and inherited the liability from the disaster. Over the years, the company has used 60 law firms and roughly 2,000 lawyers to evade paying for the court-mandated clean-up.

Aside from the pits, one of which is pictured below, Texaco located a large oil separation station in the middle of town. The station systematically discharged billions of gallons of benzene-laced production waters into rivers and streams, creating a ticking time bomb that has killed or threatens to kill thousands of people. Chevron never even extended the courtesy of putting up fences around the hazardous waste sites to keep animals out and to warn people away.

Oil pit built by Texaco in the 1970s and abandoned by Chevron near San Carlos, where Rosa Moreno lived.

Moreno was a bright light in the middle of what might be the most contaminated town on earth. From a press release from the Amazon Defense Coalition, the grass roots organization that brought the historic lawsuit against Chevron:
Moreno was mostly known as a person who tried against all odds to stave off the impending health disaster with her compassionate care of young children. Her clinic was a short walk from her house, and she was often found there seven days per week. Moreno meticulously kept a handwritten log of people in the clinic who had died, often without receiving proper treatment given the paucity of doctors in the area. The list in recent years had grown to dozens of names -- many young children -- even though only 2,000 people lived in the town. Each name on the list had a date of birth and date of death scrawled in Moreno's distinctive script.
Steven Donziger, the longtime U.S. legal advisor to the affected Ecuadorian communities who has been targeted by Chevron for his work to hold the company accountable, laid some of the blame for Moreno's death at the feet of the company:
I firmly believe Rosa and many others like her in San Carlos would not have died had Chevron mets its legal and moral responsibilities to the people of Ecuador. Rosa's death, like those of many others in Ecuador, was entirely preventable. Chevron should provide compensation to her family and medicine and diagnostic equipment for the San Carlos clinic, in addition to remediating the abysmal environmental conditions that continue to put innocent lives at risk.
Moreno's legacy will live on in many ways.

Many of the celebrities who visited Moreno in her clinic took action to alleviate the human suffering and to protest Chevron's outrageous behavior. They include Styler, who has written articles to call attention to Chevron's human rights abuses and who started a project with UNICEF that has delivered clean water to numerous villages in the affected area.

Rosa Moreno and colleague Mariana Jimenez in San Francisco
Rep. James P. McGovern (D-MA), the only U.S. Congressman to visit the devastated area, toured the health clinic in 2008 and then vividly described the horrific conditions created by Chevron in a moving letter to President-elect Obama. Bianca Jagger went to Chevron's shareholder meeting and gave the company's CEO hell in a blistering speech. Berlinger's film included Moreno and scenes from her clinic.

Karen Hinton, the former press secretary for New York City Mayor Bill DeBlasio, has hounded Chevron for its irresponsible behavior in Ecuador in a series of blogs published on The Huffington Post. And Donziger -- a classmate of Barack Obama from Harvard Law School -- has been a thorn in Chevron's side for more than two decades, as his own writings illustrate.

If you have any doubt about the cause of Moreno's death, look no further than the numerous independent studies that demonstrate Chevron's toxic legacy has produced skyrocketing cancer rates in the area where she lived. One study from a former Rand Corporation analyst predicts 9,000 deaths in the affected area in the coming years if Chevron refuses to remediate the disaster.

For more on Texaco and Chevron's dastardly behavior in Ecuador, see this video.

Although Chevron's management team surely never thought it possible, Rosa was among the many impoverished Ecuadorians who banded together and fought for years before finally holding the company legally accountable in 2011 after an eight-year trial. In a paradigmatic breakthrough in the human rights area, several prominent corporate law and litigation firms around the world signed up to represent the villagers. And in 2013, Ecuador's Supreme Court unanimously affirmed the trial court ruling in a 222-page decision that meticulously documented the overwhelming evidence against Chevron.

Although the lawsuit originally was filed in the U.S., the trial was held in Ecuador at Chevron's request and the company willingly accepted jurisdiction there. Of course, Chevron thought it could engineer a political dismissal by pressuring Ecuador's government. That unethical strategy backfired.

Chevron's continued obstinance -- it sold off its assets in Ecuador during the trial and has vowed to fight "until hell freezes over" -- forced Rosa and her friends to try to seize company assets in Canada to pay for their clean-up. That country's Supreme Court recently backed the villagers in a unanimous opinion. Chevron is now facing its own ticking time bomb in court.

Rosa, your legacy will inspire the affected communities and their allies around the world to fight on until Chevron pays the court judgment in full and the responsible individuals are held accountable for their misconduct.

Monday, October 31, 2016

Exxon Campaign Against Environmental Groups and AG Offices Eerily Similar To Chevron's Against Ecuadorian Indigenous

Reposted from Medium.

Exxon and Chevron have something in common other than oil these days. They both are playing big victims in big ways to distract from their environmental wrongdoing.

These gigantic companies are arguing in court that separate but similar “illegal conspiracies” against them are underway by groups of environmentalists, states attorneys general, trial lawyers and liberal-leaning advocates.

Chevron says it’s being “victimized” by a group of impoverished Ecuadorian indigenous peoples and their lawyers who won a historic $9.5 billion judgment for water and soil contamination in the Ecuador rainforest and want Chevron to pay up now, after 23 years of litigation.

Ecuadorian women and their children living in the rainforest who Chevron says are “conspiring” against the oil giant in collusion with their lawyers and environmental groups, like Amazon Watch — Photo by Lou Dematteis

Note: Chevron demanded the historic court case be tried in Ecuador, in the first place, and accepted jurisdiction there. Three levels of Ecuador’s courts have upheld the damage award, based on no fewer than 106 technical evidentiary reports submitted to the court.
But, like Donald Trump who refuses to accept the outcome of the presidential election unless he wins, Chevron refuses to pay the environmental judgment.
That’s after the company stripped its assets from Ecuador during the trial, forcing the Ecuadorians — who have suffered from decades of pollution — to file a lawsuit in Canada to seize company assets there as payment for the Ecuador judgment.
Meanwhile, Exxon would have us believe environmental groups and states attorneys general are colluding — in violation of their 1st, 4th and 15th Amendment rights — by demanding to know what Exxon knew about climate change in the 1970s but intentionally kept from shareholders and the public. They are asking questions about possible securities law violations based on Exxon’s obvious deceptions about global warming. Check out one of numerous internal admissions kept from shareholders.

While Chevron wrote the “victim” playbook, Exxon is taking pages from it. Examples of the eerily similar campaigns:

Similar Message

Exxon spokesman Alan Jeffers used this line in recent news coverage to describe its victimization: “This is a conspiracy to deliberately misrepresent the company’s position and to tear down the company.”

Chevron’s main lawyer Randy Mastro — known for “exonerating” NJ Governor Chris Christie in the Bridgegate scandal — has accused the Ecuadorians and their lawyers of a “criminal conspiracy” and said, if successful, “it will be open season on U.S. corporations.”

Similar Tactics

Chevron has by its own admission sought to demonize one of the Ecuadorians’ lawyers, Steven Donziger. In much the same way, Exxon is demonizing the motivations of state attorneys general.

Exxon has recruited U.S. Congressman Lamar Smith to conduct hearings on the investigation launched by state attorney generals. As Chairman of the House Science Committee, the Texas lawmaker has subpoenaed the environmental groups and Attorneys General in New York and Massachusetts for all sorts of documents as an obvious form of harrassment.

Chevron played a similar card over ten years ago, lobbying Congress to end Ecuador’s trade preferences in retaliation for “allowing” the Ecuadorians to file a lawsuit against the oil giant. Had Congress agreed, Ecuador would have lost thousands of jobs for its low-income residents. A Chevron lobbyist told Newsweek the U.S. “…can’t let little countries screw around with big companies like this — companies that have made big investments around the world.”

Similar Legal Strategy

Chevron countersued the Ecuadorians and their lawyers claiming their entire case was a “sham” and that they were trying to extort money from the company.

In turn, Exxon took the AGs and the environmentalists to court.

Here’s the reality on these two so-called “conspiracies”.

When it became clear the Ecuadorians would win their long court battle in Ecuador, Chevron unveiled an intimidation campaign in the U.S. designed to discredit the Ecuadorians and their lawyers, delay the enforcement of the Ecuador judgment and deceive the public and financial markets about what happened in the South American country.

With over 2,000 lawyers and legal assistants, at least six major public relations firms and as many, if not more, lobbying firms in tow, Chevron filed a retaliatory, RICO lawsuit for extortion and bribery against the Ecuadorians and launched a coast-to-coast PR slander campaign against them and their lawyers.

Now comes Exxon with a similar campaign against 350.org, Sierra Club, the Environmental Defense Fund and the Natural Resources Defense Council and 40 other well-known environmental and social justice groups, as well as the Attorney General.

Exxon’s PR guru Suzanne McCarron told a Business Week reporter that the effort against Exxon “feels very orchestrated” and “we wanted to know who’s behind this thing.”

Of course, it’s no secret — and never has been — who is behind it. All McCarron had to do was Google search “Exxon” and “climate change” and the people criticizing her company will appear. It’s absurd to believe the groups “behind this thing” don’t have constitutional rights to criticize and probe the actions and policies of a publicly-traded company.

But, like Chevron, if Exxon could build a different narrative — one of intrigue, conspiracies, and collusion — then the leaders of the “conspiracy” could be discredited and demonized, just as Chevron tried to do to the lawyers for the Ecuadorian villagers.

“Exxon has hired an army of lawyers to try and distract from the real story here: that they lied about their knowledge of climate change for decades,” said 350.org communications director Jamie Henn. “Delay and deceit.”

“Exxon’s filing leaves out the fact that they have spent millions of dollars funding misinformation campaigns, faux think tanks, and the elections of climate deniers. They’re reacting this way because they know the stakes of this investigation are enormous.”

The Ecuadorians could tell the U.S. environmental groups a thing or two about delay, deceit, and distractions.

Delay: 23 years of litigation in U.S., Ecuadorian and now Canadian courts, thanks to the litigious Chevron and its bottomless pit of money for lawyers.

Another example of Chevron’s deceit and deception in Ecuador rainforest.

Deceit: Chevron’s paying a witness over $2 million in cash and benefits to testify falsely against the Ecuadorians that they bribed a sitting judge and wrote the judgment for him. The $2 million is four times the amount of the false bribery claim. Chevron’s lawyer Mastro and his team spent 53 days “coaching” the witness to lie.

Distractions: Filing lawsuits in dozens of jurisdictions to draw attention away from the pollution in Ecuador and drain the Ecuadorians of any money for lawyers so they are not able to enforce the judgment that three layers of appellate courts in Ecuador have upheld.

Despite the delays, deceit and distractions, the Ecuadorians are still fighting Chevron and could end up collecting the full amount of their judgment in Canada, where the country’s Supreme Court backed them in a unanimous procedural decision in 2015.

Time will tell. Chevron as well as Exxon should look around and see how the world is changing. Time is running out for both climate change deniers and corporate polluters.