Tuesday, March 12, 2019

Prominent Lawyers Rally To Support Steven Donziger's Right To Expose Chevron's Witness Bribery and Fraud

Several prominent U.S. lawyers, including First Amendment scholar Martin Garbus and Harvard Law Professor Charles Nesson, are supporting human rights attorney Steven Donziger in his demand to present evidence that Chevron used fraud to try to strip him of his law license.

Chevron used witness bribery and other false evidence to lobby for Donziger to be suspended on an interim basis without a hearing after he led Indigenous groups in Ecuador to a landmark court victory over the company. (For background, see this criminal referral letter of Chevron and its attorneys to the U.S. Department of Justice.) Four layers of courts in Ecuador, and 16 appellate judges total, have affirmed the findings against Chevron and rejected the company's fake "fraud" narrative targeting Donziger.

Donziger is contesting his suspension, but staff attorneys at the New York bar grievance committee -- who have been pressured by company lawyers -- are trying to deny him a hearing where he can present evidence. 

Garbus said the following in defense of Donziger:
“This awful injustice, a dagger in the heart of the Ecuadorian people, is unconstitutional and must be reversed,” he said. “The Ecuadorian people are entitled to the lawyer of their choice, Steven Donziger, who is one of the country’s finest, most decent and most honorable lawyers. Steven’s representation is essential to the Ecuadorian quest for justice and he must be permitted to continue.”
The press release about the latest development from the Amazon Defense Coalition, the organization that won the historic pollution judgment against Chevron in Ecuador, is here and can be read in full below:

Prominent Lawyers Rally To Support Steven Donziger’s Demand That He Be Allowed to Present Evidence of Chevron Fraud

Harvard Professor Nesson Says Evidence Proves Oil Giant “Manufactured A Lie” To Try to Strip Donziger’s Law License To Retaliate for Winning Pollution Case

New York – Three prominent lawyers have rallied behind the demand of human rights attorney Steven Donziger that he be allowed to present compelling new evidence that Chevron committed fraud to try to strip him of his law license as retaliation for helping his Indigenous clients win a landmark $12 billion pollution judgment in Ecuador.

Under pressure from Chevron and a U.S. judge who has tried to attack the Ecuador judgment, staff attorneys at the New York bar grievance office in 2018 designated Donziger “an immediate threat to the public order” and temporarily suspended his law license despite the fact 16 appellate judges in Ecuador have affirmed the pollution findings against Chevron. Donziger had a disciplinary hearing scheduled for December to challenge that designation, but the bar staff lawyers blocked it – an act that Donziger and his supporters say violates the Constitution.

In a legal motion filed this week before a New York state appellate court, Donziger is demanding he be able to challenge findings of Judge Lewis A. Kaplan that formed the basis of his temporary suspension. Kaplan’s finding that the Ecuadorian judge was promised a payment was based entirely on the testimony of an admittedly corrupt Chevron witness, Alberto Guerra, after he was paid $2 million by Chevron and coached by its lawyers for a staggering 53 days prior to taking the stand.

Guerra later admitted he had perjured himself under oath while a forensic analysis proved he lied about a critical issue on which Kaplan based most of his decision. Yet Donziger was still suspended based on Guerra’s testimony, which has been rejected by four layers of courts in Ecuador. The Kaplan findings also have been ignored by Canada’s Supreme Court, which unanimously endorsed an enforcement action filed by the Ecuadorians targeting the company’s assets in that country. Donziger has not had even one client complaint in 25 years of law practice.

New York grievance committee staff attorneys Naomi Goldstein and Jorge Dopico (who oversee attorney licensing in New York) refused even to interview Donziger after he sent them a detailed letter explaining why he believed there was no valid basis to proceed against him. Donziger and the case against Chevron have the backing of several major environmental groups (here), indigenous leaders (here), and a coalition of civil rights groups (here) who are trying to stop a proliferation of corporate-funded harassment lawsuits.

First Amendment litigator and scholar Martin Garbus, who represents Donziger in the bar proceeding, criticized the attorney grievance office that oversees attorney licensing in New York.

“This awful injustice, a dagger in the heart of the Ecuadorian people, is unconstitutional and must be reversed,” he said. “The Ecuadorian people are entitled to the lawyer of their choice, Steven Donziger, who is one of the country’s finest, most decent and most honorable lawyers. Steven’s representation is essential to the Ecuadorian quest for justice and he must be permitted to continue.”

Donziger is also represented by Harvard Law Professor Charles Nesson and Kathleen Mahoney, who teaches at the University of Calgary Law School and is a prominent human rights advocate in Canada who played a leading role in helping to settle the landmark residential schools case in that country. Mahoney has visited Ecuador and met with Chevron’s victims.

“I am representing Steven Donziger because Judge Kaplan’s finding that he is guilty of judicial bribery is a manufactured lie that not even Kaplan stands behind,” said Nesson, who taught Donziger when he was a student at Harvard in 1989. “This is not any sort of basis to take disciplinary action to suspend a lawyer, especially without a hearing where he is not allowed to challenge the finding. This is patently unconstitutional.”

Donziger also has won the support of the London-based human rights group Global Witness. Last year, Global Witness released a statement criticizing the New York bar grievance staff lawyers for violating Donziger’s due process rights. A separate letter the group sent to the grievance office seeking an explanation was ignored.

“It is shocking to note the similarities between this case, and cases we have observed in a myriad of Banana Republics around the world, where official harassment of anyone who threatens the powerful is the norm,” the group wrote.

The court-appointed referee in Donziger’s disciplinary case, John Horan, had ruled last November that Donziger could challenge Kaplan’s findings and set December 4 for a hearing. “It is an open question whether [Donziger] did receive a full and fair hearing before Judge Kaplan,” Horan found. (The full decision is here.)

The Horan ruling prompted Goldstein and Dopico to rush back to a New York state appellate court to overturn his decision, essentially shutting down Donziger’s ability to present evidence challenging the Kaplan findings that were used as the basis for his temporary suspension four years after they issued.

Chevron has a long history of trying to bully and silence its adversaries in the case. Two weeks ago, more than 20 civil rights groups gave Chevron the “Corporate Bully of the Year” award for its SLAPP-style harassment attacks on Donziger and his Ecuadorian clients. (See here.) In 2015, Chevron won the lifetime Public Eye Award in Davos for being the worst corporation for its refusal to clean up the billions of gallons of toxic waste it dumped in Ecuador, decimating Indigenous groups and causing an outbreak of cancer that puts thousands of people at risk.

After the Ecuador judgment against Chevron issued in 2011, a Chevron official threatened the Ecuadorian villagers with a “lifetime of litigation” if they persisted. Another official admitted that the company’s defense strategy was to “demonize” Donziger. Chevron lawyers – including Andrea Neuman of the Gibson Dunn firm -- have openly lobbied for Donziger’s disbarment.

Donziger has written a criminal referral letter to the U.S. Department of Justice outlining fraud and misconduct committed by the company and its lawyers.

For more details of the New York bar grievance committee’s handling of the Donziger case, see here. For background on Chevron’s and Judge Kaplan’s attacks on Donziger and his Ecuadorian clients, see this article by Greenpeace co-founder Rex Weyler.


Karen Hinton (703-798-3109)

Wednesday, March 6, 2019

Questions Raised About NY Bar Grievance Committee's Mistreatment of Attorney Steven Donziger

New York human rights attorney Steven Donziger has long warned that Chevron would engage in a politically-motivated attempt to try to strip him of his law license after it lost the landmark $12 billion Ecuador pollution case. Sadly that prediction may come true given efforts by the oil giant and U.S. judge Lewis A. Kaplan to block the decision of a neutral bar referee who ruled Donziger could present evidence challenging Chevron's fake "fraud" narrative.

Steven R. Donziger, lifelong human rights
attorney and advocate for Indigenous peoples
London-based Global Witness, a prominent human rights group, has issued a statement expressing concern about the deplorable treatment of Donziger by Chevron, Kaplan, and the bar authorities. Recently, a coalition of 20 prominent civil rights groups -- including the ACLU, Electronic Frontier Foundation, and Greenpeace -- named Chevron "Corporate Bully of the Year" for its vicious SLAPP-style litigation attacks targeting Donziger and his Ecuadorian clients.

The facts are disturbing.

U.S. Judge Kaplan, a former Chevron
investor, has been attacking Donziger
As background, Donziger (bio and website) is a Harvard Law graduate and classmate of President Obama with not a single client complaint in twenty-five years of law practice. His apparent "mistake" in Chevron's eyes is that for two decades he has been a driving force behind one of the most successful corporate accountability cases ever. The size of the judgment and the financing paradigm of "private capital in service of human rights" represents a major threat to Chevron and a fossil fuel industry which faces trillions of dollars in legacy pollution liabilities around the globe. That's why Chevron has used 60 law firms and 2,000 lawyers to deploy maximum overkill to fight Donziger and his clients; the company literally wants to kill off the very idea of the case.

Four layers of courts in Ecuador -- including the country's Constitutional Court in a unanimous decision last July -- have affirmed the judgment against Chevron based on 105 technical evidentiary reports and 64,000 chemical sampling results in addition to scores of witness testimony. Not even Chevron denies it caused massive, obscene and carcinogenic pollution as a cost-saving measure. The company does not deny that an explosion in cancer rates has taken place in areas where it operated hundreds of well sites from 1964 to 1992. Unable to defend on the evidence, Chevron made up its own facts and laundered them through Kaplan's court.

Chevron lawyers at the Gibson Dunn firm in New York -- led by Randy Mastro and Andrea Neuman -- orchestrated the highly suspect ruling by U.S. judge Kaplan in a civil "racketeering" trial that ended in 2014. Many critics, including prominent appellate lawyer Deepak Gupta, consider this ruling legally flawed and ethically compromised. After denying Donziger a jury and then exhibiting a pronounced pro-Chevron bias throughout the trial, Kaplan found Donziger committed "fraud" based almost entirely on testimony from an admittedly corrupt Ecuadorian witness paid two million dollars by Chevron in violation of federal law. The witness, Alberto Guerra, was coached a staggering 53 days by Chevron lawyers before testifying that Donziger approved a bribe of the trial judge. Guerra later admitted under oath that he repeatedly lied in Kaplan's court.
Gibson Dunn's Mastro has
made millions helping
Chevron target Donziger

New York grievance committee staff attorneys Naomi Goldstein and Jorge Dopico are charged with overseeing attorney discipline in Manhattan. Last year, based entirely on the Kaplan decision, the pair sought Donziger's interim suspension without a hearing after absurdly designating him "an immediate threat to the public order" based on his work holding Chevron accountable. They concocted this Kafkaesque designation after refusing even to interview Donziger or any of the numerous witnesses available who can challenge Kaplan's findings and expose Chevron's criminal misconduct. (For more on Chevron's intimidation model, see this excellent article by Greenpeace's Weyler.)

Consider these details of how the NY bar grievance lawyers have treated Donziger since Kaplan and his colleagues "referred" him for disciplinary action in late 2016, precisely at the time the enforcement action against Chevron in Canada was advancing in Canadian courts:

  • In February 2017, Donziger responded to his referral with a detailed letter in which he explained the absolute lack of basis to move against him. He offered to sit for an interview and otherwise fully cooperate. Goldstein and Dopico ignored the letter.
  • Several months later, Goldstein and Dopico went to court to petition for Donziger's designation as "an immediate threat to the public order" based on the disputed Kaplan findings that had issued four years earlier. Donziger was provided no prior notice.
  • Goldstein and Dopico targeted Donziger after he publicly challenged the evidence underlying the Kaplan RICO decision. Donziger called attention to the many due process problems with Kaplan's trial, including the suspicious and still secret million-dollar Chevron payments to a Special Master appointed by the judge who is a personal friend (see here). Donziger also published a detailed and powerful 33-page rebuttal exposing Chevron's fraud.
  • As Donziger and others voiced criticism of Kaplan, suddenly a bar referral letter to Dopico suggesting Donziger's immediate suspension was sent by several of the judge's colleagues on the federal bench. The letter was clearly misleading and injudicious. It failed to mention critical evidence undermining the credibility of Kaplan's decision, including the exorbitant Chevron witness payments. It ignored the fact four courts and 16 judges in Ecuador had rejected Kaplan's findings and that Canada's Supreme Court had ruled in favor of the Ecuadorians.
  • The court-appointed referee designated to oversee Donziger's bar hearing, John Horan, recently ruled (see here) that due process requires that the advocate be allowed to present evidence to challenge Kaplan's findings and Chevron's fake "fraud" narrative. Horan suggests Kaplan did not provide Donziger a "full and fair" hearing in the prior case. He scheduled a hearing for early December for Donziger to present evidence.
  • Rather than take part in a hearing before their own referee and respond to Donziger's evidence, Dopico and Goldstein rushed back to a New York appellate court to stay the hearing that would finally have allowed Donziger his day in court. They argued that Kaplan had already "decided" the fact issues back in 2014 and that Donziger should not be allowed to present any evidence other than testimony related to his character. 
  • A five-judge panel from a New York State appellate court could have ordered the hearing to proceed, but instead (in a one-paragraph order) appeared to robotically rubber-stamp the request to block the fact-based proceeding regarding Donziger's law license. The five judges on the panel were John H. Sweeny, Jr.; Dianne T. Renwick; Rosalyn H. Richter; Sallie Manzanet-Daniels; and Marcy L. Kahn. 
  • Obviously embarrassed to be doing Chevron's dirty work, Dopico and Goldstein have worked overtime to prevent public scrutiny of their trampling of Donziger's due process rights. The pair have repeatedly tried to block Donziger from opening any hearing (should one actually happen) to the public and to journalists, even though he has waived his right to confidentiality as a way to shine some light on the process.
The language in Horan's ruling suggests why Kaplan and the Chevron lawyers are on edge. Horan concluded that Kaplan "created a criminal indictment" but "in the guise of civil RICO proceedings" and then found facts without a jury by a "preponderance of the evidence" standard rather than a normal "beyond a reasonable doubt" standard. Horan added: "it is open to question... whether [Donziger] did receive a full and fair hearing before Judge Kaplan..." 

One of many toxic pits left by Chevron
in the Ecuadorian Amazon
Even though Chevron and Kaplan have tried their best to knock Donziger off the case, the strategy is not working. The success of the case has won Donziger and his Ecuadorian clients high praise from major environmental and Indigenous leaders the world over. Supporters include Phil Fontaine, the former National Chief of Canada; Rafael Pandam, the President of the Amazon Parliament of Ecuador; and Atossa Soltani, the founder of Amazon Watch. First Amendment Scholar Martin Garbus, Harvard Law Professor Charles Nesson, and Greenpeace co-founder Rex Weyler have all backed Donziger and gone after Chevron. Weyler accused the company of committing "ecological crimes" in Ecuador.

Prominent San Francisco-based trial lawyer John Keker (who represented Donziger) called the Kaplan proceeding a "Dickensian farce" designed to inflict harm on Donziger. Kaplan's problematic findings have been largely ignored in Canada, where the Supreme Court unanimously backed the enforcement action against Chevron. Sixteen judges in Ecuador have rejected his conclusions. But in New York, the Kaplan findings are being exalted by the bar authorities to try to deny Donziger a hearing where the truth can be revealed.

Further details of that truth are outlined in this stunning letter by Donziger to the U.S. Department of Justice. We might add that the Gibson Dunn firm to whom Chevron has paid hundreds of millions of dollars has a history of engaging in "legal thuggery" and the fabrication of evidence on behalf of its scandal-plagued wealthy clients. (See here.) The High Court of London recently disbarred one lawyer at the firm for trying to frame an enemy of one his clients, the President of the African nation of Djibouti. No offense to the many fine lawyers at Gibson Dunn, but this willingness to cross the ethical line is part of the "service" some in the firm's litigation department sell to wealthy corporations enmeshed in scandal.

Also relevant is the long history in the United States of politically-motivated bar discipline targeting lawyers who challenge entrenched interests, as documented in this article. The New York judiciary's disrespect for Donziger appears to fit well within this tradition. The human rights NGO Global Witness likened Donziger's mistreatment to what the group usually sees in repressive regimes like North Korea, Saudi Arabia, and Turkey (see here). "It is shocking to note the similarities ... between this case, and cases we have observed in a myriad of Banana Republics around the world, where official harassment of anyone who threatens the powerful is the norm," the group wrote.

Donziger is not a threat to the public order. He is a threat to Chevron's environmental crimes and Judge Kaplan's credibility as an unbiased arbiter of the facts. Attorney Donziger's license must be restored and he should be allowed to challenge Kaplan's findings in a public setting. Anything less will be a huge stain on the reputation of the New York judiciary.

Friday, March 1, 2019

Amazon Leaders Condemn Chevron For Trying to Orchestrate Another Sham "Remediation" In Ecuador

Leaders of Indigenous peoples and farmer communities in Ecuador this week called out Chevron for trying to orchestrate yet another sham remediation of its environmental contamination on their ancestral lands. The purpose of the company's latest maneuver is to try to evade its $12 billion environmental judgment, currently being enforced in Canada and the source of major consternation among company shareholders.

This picture of a Chevron pit was taken after its "remediation"
The judgment against Chevron -- confirmed by 16 separate appellate judges in Ecuador -- covers what might be the worst oil-related damage on earth. Chevron deliberately dumped billions of gallons of toxic waste into the rainforest when it operated in the country from 1964 to 1992. The dumping decimated Indigenous cultures and caused an outbreak of cancer that has killed thousands.

While it is no surprise Chevron's operatives would pressure Ecuador's government to do a clean-up of its damage, the reality is the government's $10 million fund would cover less than 1% of the cost of a real clean-up. Chevron also has the little problem that an earlier "remediation" from 1995-1998 has been widely condemned as a fraud by Ecuadorian courts.  That was a major scam attempt.  Chevron spent only $40 million at the time, or far less than 1% of the cost of an actual clean-up. (To understand details of Chevron's earlier sham clean-up, see here and here.)

The Amazon Defense Coalition -- the group that brought the case against Chevron and is the beneficiary of the judgment on behalf of 30,000 affected peoples -- issued this press release yesterday about the new remediation attempt by Chevron:

Amazon Leaders Condemn Chevron and Ecuador Government For Setting Up "Pathetic"  Clean-Up Fund To Cover Costs of $12b Environmental Disaster

Sham Remediation by Chevron and Ecuador Government in 1990s Does Not Inspire Confidence of Affected Communities, FDA Says

Quito – Leaders of Ecuador’s Amazon communities this week blasted Chevron and their own government for setting up a paltry clean-up fund of only $10 million to cover massive costs to remediate the oil company’s environmental disaster that various courts have determined will run at least $12 billion and maybe much higher.

"This new fund is pathetic given the magnitude of the damage and is obviously just the latest attempt by Chevron to duck its clean-up obligations to the Indigenous peoples of Ecuador as imposed by the court system," said Agustin Salazar, the Ecuadorian lawyer for the communities.

The government-announced fund – created without any consultation with the communities it is supposed to help -- would not cover even one percent of the actual costs to remediate Chevron’s “Amazon Chernobyl” disaster, as determined by four layers of courts in Ecuador, according to court evidence. Ecuador’s courts found Chevron deliberately dumped billions of gallons of toxic oil waste onto Indigenous ancestral lands when it operated in Ecuador from 1964 to 1992, decimating local cultures and causing an outbreak of cancer that has killed or threatens to kill thousands of people.

Most experts consider Chevron’s oil-related disaster to be the worst toxic contamination in the world, with local leaders calling it a “mass industrial poisoning” and one of the worst corporate crimes ever. Chevron has spent at least $2 billion to hire 60 law firms and 2,000 lawyers to fight the Indigenous groups.

“While we welcome all help we can get, this so-called clean-up fund seems to be another example of Chevron’s long history of corruption, subterfuge, and greed as well as the weakness of our own government in face of the company’s pressure,” said Rafael Pandam, the President of Ecuador’s Amazon Parliament and member of the Amazon Defense Coalition, the group of communities that won a landmark pollution judgment of $12 billion in 2011.

“At best, this fund will pay for only two of the 1,000 unlined toxic waste pits Chevron left behind that still contaminate our ancestral lands,” he added. “We obviously will continue to enforce the court judgment against Chevron in Canada until the full amount is collected.”

While the Amazon communities pursue Chevron’s assets in Canadian courts, it has been widely reported that the oil company – with the apparent help of the Trump Administration – has been trying to pressure Ecuador President Lenin Moreno to assume the costs of clean-up as a way for Chevron to escape the court-imposed liability. Earlier this week, Ecuador’s Minister of Hydrocarbons, Carlos Perez, announced the $10 million clean-up fund without any prior consultation with the communities and without providing any details.

Under the terms of the Ecuador court judgment against Chevron – which issued in 2011 and was affirmed by Ecuador’s Constitutional Court last July -- any clean-up funds collected from Chevron in Canada or other enforcement jurisdictions will be turned over to the communities and their technical advisors to be used for proper remediation and for the construction of medical centers, the provision of clean water, and the restoration of Indigenous lands and culture. Chevron’s disaster encompasses roughly 400 well and production sites spanning 1,500 sq. miles and will take ten to 20 years to properly remediate, according to experts.

Evidence presented in the Ecuador trial found that when Texaco (Chevron’s predecessor company) left Ecuador in 1992, it abandoned roughly 1,000 unlined toxic waste pits with each costing approximately $5 million to remediate. The pits still contaminate groundwater and rivers relied on by the local population for drinking water, leading to high cancer rates and other health problems.

Douglas Beltman, a U.S. scientific expert for the affected communities, testified under oath that each of the abandoned Chevron waste pits would be considered a Superfund site under U.S. law. The Ecuador government fund will only cover the costs of two of 1,000 waste pits, according to Beltman’s analysis. “It is clear Chevron treated Ecuador as a trash bin,” Beltman told the U.S. News show 60 Minutes in an interview in 2009. 

In a press release put out by the FDA, the organization responded to the announcement of new fund with the following statement:

“The FDA wants to remind people that there exists one responsible party for the contamination in Ecuador’s Amazon and it has a name: the Chevron Corporation... Any announcement of a clean-up fund should base itself in the context of the historic court judgment that we are enforcing in Canada. We will not accept anything less.”

The FDA also criticized Chevron for attempting a remediation in the mid-1990s that cost $40 million, or far less than 1% of the amount needed to properly repair the damage. That so-called “clean-up” consisted largely of covering a small percentage of the company’s toxic waste pits with dirt and was widely condemned as a sham.  It also only covered 16% of the company’s pits.

Also in that earlier Chevron attempt at clean-up, the company used an illegal standard 50 times more lax than typical U.S. standards which made it virtually impossible to fail inspection even though hardly any work was done, according to Beltman’s analysis. Chevron then tried to use its so-called sham “remediation” as a legal basis to dismiss the environmental case, but courts rejected that maneuver.

The same Ecuadorian Ministry that oversaw the earlier sham clean-up in the mid-1990s is now creating the fund even though Chevron is responsible for the damage and the company faces the far larger court judgment, according to the FDA. Enforcement of the $12b judgment against Chevron will continue in Canada, where the Supreme Court of that country backed the Ecuadorians in a unanimous decision that issued in 2015, said Salazar, a lawyer for the organization.

For more background on Chevron’s earlier “remediation” in Ecuador carried out by Texaco, see thissummary memo by Beltman of Stratus Consulting and this article by Karen Hinton.

Wednesday, February 27, 2019

Chevron Named "Corporate Bully of the Year" For Attacks On Ecuadorian Indigenous Peoples and Steven Donziger

Chevron's reputation as a major polluter and human rights abuser took another hit this week when it "won" the "Corporate Bully of the Year" award from a coalition of prominent civil rights and environmental groups. This is all on Chevron's CEO Michael Wirth and General Counsel R. Hewitt Pate, the architects of the company's scorched earth litigation strategy.

Chevron CEO Michael Wirth 
Chevron won the award for its vicious litigation attacks against Ecuadorian Indigenous peoples and one of their U.S. lawyers, Steven Donziger. Donziger in 2011 helped his clients win a landmark $12 billion environmental judgment against the company in Ecuador, where Chevron insisted the trial be held. The judgment was affirmed by four courts in Ecuador and 16 appellate judges, including by the nation's Constitutional Court last July in a unanimous opinion.

Chevron under the leadership of Wirth and Pate has proven itself to be a company that does naturally respect the rule of law.

Since the Ecuador trial court decision issued, Chevron has spent an estimated $2 billion on 60 law firms and 2,000 lawyers to attack the Ecuadorian peoples -- primarily through a civil racketeering case in the U.S. based largely on false testimony from an admittedly corrupt company witness paid $2 million to lie in federal court. One Chevron official  admitted that the company's main defense to the Ecuador judgment was to "demonize" Donziger, a Harvard Law grad called a man of "Herculean tenacity" by BusinessWeek.

Background on the "Corporate Bully" award -- granted by a new anti-SLAPP coalition called Protect The Protest -- is here and in this press release. For a deeper appreciation of the unethical and even criminal behavior of Chevron and its lawyers at the Gibson Dunn firm -- including evidence they engaged in fraud and witness bribery -- see this referral letter sent to the U.S. Department of Justice.

The anti-SLAPP coalition is dedicated to stopping a new corporate playbook pushed by Chevron's law firm Gibson Dunn and other copycat companies to "criminalize" legitimate advocacy that threatens corporate interests. Members of the coalition include Greenpeace, the ACLU, Natural Resources Defense Council, the Electronic Frontier Foundation, Earth Rights International, and Amazon Watch. Greenpeace itself has been targeted with two SLAPP lawsuits in recent years.

In awarding Chevron the "Bully" award, the Protect the Protest coalition concluded the following:
Chevron's litigation strategy in 2018 followed the same playbook it had been using for years: bully, harass, intimidate... Chevron has only ramped up its bully tactics in what has been described as the "vengeance stage" of its 25-year long legal effort to avoid accountability for oil-spilling in Ecuador. Despite spending an estimated $2 billion to hire 60 law firms and 2,000 law firms to pursue the case, Chevron spent most of 2018 trying to strip away Donziger's license to practice law and bankrupt him through the recovery of attorney fees. More recently, Chevron has issued aggressive and far-reaching subpoenas to pursue third-party critics of the energy giant. This has included Katie Sullivan, a small business owner who volunteered to help fundraise and organize documents for Ecuadorian victims, who testified that she had to personally spend at least $170,000 in legal fees trying to comply with Chevron's subpoena as well as endure Chevron's harassment of her clients.
Katie Sullivan was another victim of a Chevron SLAPP attack designed to silence critics by threatening enormous legal fees and hassle in violation of First Amendment-protected Free Speech. (SLAPP is an academic term that stands for Strategic Lawsuit Against Public Participation.)

Chevron General Counsel Hew Pate
Patricio Salazar, the lead Ecuadorian lawyer for the Ecuadorian communities, said Chevron's bully award is "most deserving" given the destruction the company caused in the South American nation. Salazar said: "There is probably no more bullying and abusive company in the world than Chevron when it comes to using the civil justice system to try to intimidate its perceived enemies."

Remember that Chevron still faces a major enforcement action against its assets in Canada, which are large enough to pay the entirety of the Ecuador judgment. Canada's Supreme Court already has backed the right of the Ecuadorians to pursue that case. That decision last year prompted 36 Chevron institutional shareholders to urge Wirth to explore a settlement rather than face growing financial and reputational risk.

The real lesson for Wirth and Pate is that while bullying might buy time, it is not a sustainable long-term defense strategy to a legitimate legal case. The strategy is also illegal. Chevron's Board of Directors needs to step up and get the company's CEO and General Counsel under control.

In the meantime, congratulations to Chevron's top executives. With thousands of Indigenous peoples and farmers dead from cancer in Ecuador from your deliberate toxic dumping, you definitely have earned this miserable award.

Thursday, December 20, 2018

2018 Was Tough Year for Chevron On $12b Ecuador Case; Board Asked To Investigate CEO Wirth

Chevron had a tough year in 2018 as it dug itself an even deeper hole on environmental issues across the globe, most notably on the landmark pollution case where the company faces a $12 billion liability for causing the "Amazon Chernobyl" in Ecuador.

Chevron's massive expenditures on that litigation -- now up to $3 billion in legal fees to pay 2,000 lawyers -- are intended to try to crush impoverished Ecuadorian Indigenous peoples and farmer communities who won the landmark pollution judgment. Those expenditures are also a telltale sign of the company's increasing anxiety. No matter how you cut it, 2018 was a bad year for Chevron and its pollution profiteers at major law firms who work hard to keep the victorious Ecuadorian communities tied up in court for no good reason.

First, consider the many setbacks suffered by Chevron CEO Michael Wirth in 2018:

**Chevron's own shareholders are rebelling over the company's Ecuador liability. Thirty-six institutional shareholders representing $109b in assets wrote a stunning letter demanding that the hard-headed Wirth explore a settlement. Two shareholder resolutions criticizing Wirth's mishandling of the Ecuador litigation received overwhelming support at the 2018 annual meeting. (See here for background.)

**Civil society is also rebelling against Chevron after it received the ignominious Public Eye Award for being the worst global company. Almost 1 million citizens signed an on-line petition from Avaaz blasting Wirth for failing to comply with the Ecuador judgment. In Canada, 653 aboriginal groups signed a protocol with Ecuador's national federation to hold Chevron accountable for its environmental misconduct. Chevron is becoming persona non grata in the Indigenous world. But wait -- some of the world's most valuable oil reserves sit above Indigenous lands!

**In Canada, Chevron's attempts to shut down the Ecuador judgment enforcement action continue to fail. Canada's Supreme Court has backed the Ecuadorians in a unanimous opinion. Chevron's latest gambit to evade that decision -- to hide its Canadian assets in a wholly-owned 7th-tier subsidiary -- is now before the Canada Supreme Court. Regardless, Chevron faces an embarrassing trial where its star witness Alberto Guerra will face questioning for his lies and corrupt acts and Chevron's American lawyers will be asked about their apparent witness bribery.

**Chevron also faces major tax liabilities in Canada related to billions of dollars of suspicious payments made by the company's Canadian subsidiary to the governments of Nigeria and Indonesia. Chevron's lawyers in Canada, led by Larry Lowenstein, have tried to hide these payments. Chevron's reputation as a global tax cheat extends well beyond Canada to Australia, Argentina, and the Netherlands.

**Chevron's main defense -- that the Ecuador judgment was obtained thru bribery -- has fallen apart. Not only did that defense depend almost completely on Guerra's lies, but there is credible evidence that Chevron and its lawyers might have engaged in a criminal conspiracy to manufacture evidence as part of  a "kill step" marketing strategy being peddled by the ethically-challenged Gibson Dunn law firm -- a firm already caught fabricating evidence in another case. Lawyers at Gibson Dunn and Chevron officials face a criminal referral letter to the U.S. Department of Justice for their apparent misconduct.

In other parts of the word, Chevron is contending with multiple lawsuits over climate change after Wirth's failure to adjust his business model to mitigate harm to the planet. The company is aggressively fighting crab fishermen in California whose catch has dramatically dropped because of warming waters; has been sued by municipalities over global warming; and has been accused by the Mapuche of polluting their traditional lands in Argentina as part of an earlier corrupt move to kill off an enforcement action of the Ecuador judgment in that country. (See here.) That's just the tip of the iceberg for Chevron, as any Google search will disclose.

Chevron faces increasing resistance from civil society groups for its backward-facing approach to environmental issues. Several such groups have organized to thwart Chevron and other polluters from using the legal system to engage in illegal SLAPP-style attacks on environmental and human rights defenders. Our American friend Steven Donziger, who has fought Chevron for 25 years over the Ecuador pollution, was once sued for $60 billion by Chevron in New York as part of its corporate intimidation campaign. That was before the company chickened out and dropped all damages claims against Donziger to avoid a jury of impartial fact finders.

Prominent groups as varied as Amazon Watch, London-based Global Witness, Rainforest Action Network, Greenpeace, the ACLU, and the Electronic Frontier Foundation have protested Chevron's attacks against human rights defenders such as Donziger, the driving force behind the Ecuador judgment. Several groups have formed a coalition (www.protecttheprotest.org) to safeguard Free Speech in light of Chevron's and Gibson Dunn's assaults on political activity. It doesn't help Chevron that legendary rocker Roger Waters was just in Ecuador's Amazon in a display of solidarity with the people the company poisoned. (See here for a television report.)

After having spent billions to fight the Amazon communities who won in court, Wirth and Chevron General Counsel R. Hewitt Pate have a lot to answer for. Chevron shareholders just filed two more resolutions challenging the mismanagement by Wirth and Pate of their funds. This promises another contentious annual meeting next May that will be dominated by talk of Wirth's human rights violations in the Amazon. Chevron is also trying to coax Team Trump (after donating $500,000 to Trump's inauguration) to pressure Ecuador's fragile government to turn against its own citizens and side with the oil company in the litigation, another project destined to fail.

Wirth also has yet to account for Chevron's Nazi past (via Texaco) as outlined in Adam Hochshild's excellent book, Spain In Our Hearts. The company's board of directors should commission an independent investigation into this issue. While at it, it should also take an independent look at the broader Chevron human rights violations in Ecuador and in the offices of its hired guns at the U.S. law firm Gibson Dunn.

Oops, that might not happen given that Wirth is Chairman of the Chevron Board and CEO, an antiquated structural relic frowned upon by almost all corporate governance experts.

When the history of Chevron is written, the company will surely go down as one of the most corrupt and criminal ever to rampage across the globe. Governments owe it to their citizens and to the survival of the planet to cease doing business with this destructive company until it pays what it owes to the peoples it harmed in Ecuador and it demonstrates it can be a responsible corporate citizen.

Friday, November 23, 2018

Statement From Ecuadorian Communities About Support From Musician Roger Waters

The following is a statement regarding Roger Waters released today from Carmen Cartuche, the President of the Front for Defense of the Amazon (FDA), the grass roots organization in Ecuador that is the beneficiary of the historic environmental judgment against Chevron:

Rumors that Roger Waters received money to come to Ecuador or that he might profit from the historic litigation are based on lies propagated by Chevron. Roger has generously supported the local Ecuadorian communities in their legal battle with donations just as he has many other social justice movements around the world. Roger has never expected to profit from the affected communities should they collect on their judgment against Chevron.

The document being circulated by Chevron to supposedly show Roger was entitled to a minuscule percentage of the Ecuador judgment should there be a collection is wholly misleading. The Chevron document reflects what the affected communities aspired to give Roger in exchange for his donation. Roger never asked to be an investor, is not an investor, and will never be an investor.

To be clear, the use by the affected Indigenous and farmer communities in Ecuador of third-party investor funds to finance their lawsuit against Chevron has allowed us to achieve great success. Many of our supporters around the world have participated in this funding model, which is entirely proper and laudable even though Chevron obviously would much prefer that its victims rely only on “charity” to press their legal claims. The funding model is also a paradigm-shifting breakthrough for the human rights movement. Outside funds in relatively modest amounts have allowed the Ecuadorians to win their case and sustain their campaign against Chevron for 25 years. Without funds provided by investors and donors, Chevron’s victims would never stand a chance against the estimated $2 billion the company has spent on its army of 60 law firms and 2,000 lawyers.

The funding model used by the affected communities in Ecuador has enabled a historically unprecedented level of accountability for corporate criminality and fraud committed by a major oil company, Chevron. The model is one of many that human rights advocates can use to increase accountability for corporate wrongdoers. We also believe the model we use can enhance access to the justice system for all who are victimized by private companies that perpetrate human rights abuses.

We again thank Roger Waters and all donors and investors for their continued support of our campaign in the face of Chevron’s unethical and illegal attacks on our right to seek just compensation for the company’s environmental pollution.

Carmen Cartuche
President, Frente de Defensa de la Amazonia (Front for the Defense of the Amazon)
November 23, 2018

Thursday, October 11, 2018

Chevron Appears To Be A Global Tax Cheat As Well As Serial Human Rights Abuser

In the battle between Indigenous peoples and Chevron over the company's massive toxic dumping in Ecuador, one thing has become increasingly clear: the human rights abuses committed by the company in the Amazon are not unique. They are in fact indicative of an internal culture that clearly flouts the law as part of the company's customary business practices. And the victims of this culture extend way beyond the people of Ecuador.

Chevron's history of toxic dumping in Ecuador and its subterfuge to avoid paying damages is widely known and undisputed. The company's global tax avoidance practices -- tax cheating -- are less well known but are becoming more evident. Think of that New York Times story on the Trump family's tax fraud, and one can quickly understand what Chevron is doing on a global scale.


Australia: Chevron maintains its largest foreign investment in the Gorgon natural gas project off the northern coast of Australia. It sold Australians on the promise that it would pay billions annually in tax revenue to the country so it could build things like hospitals and schools. Instead, Chevron for years paid zero taxes in Australia despite making huge profits. It did this by having its Australian subsidiary pay back a high-interest 9% loan provided by a Chevron subsidiary in Delaware in what is clearly an illegal "related company" transaction designed to evade tax laws.

The loan repayments "wiped out" all Chevron profits in Australia and the company never paid taxes. Chevron ended up being caught and authorities forced it to pay a massive tax bill; company officials who orchestrated the scheme are the same officials who have refused to pay the Ecuador judgment after dumping billions of gallons of cancer-causing waste into the Amazon. They were not personally prosecuted, fined, or punished. See here for part of the background.

Canada: Chevron pays almost no tax in Canada despite generating billions in revenue from its wholly-owned Canadian subsidiary, Chevron Canada. In the course of the judgment enforcement action brought by Ecuadorians in Canada to force compliance with the $12 billion Ecuador pollution judgment, we learned that Chevron Canada pays billions each year to the governments of Indonesia and Nigeria in an obvious tax-avoidance scheme orchestrated at Chevron headquarters in California.

That is, Chevron uses its Canadian subsidiary as a vehicle to lower its tax bill in a country where it maintains an estimated $25 billion in assets. Other oil companies also see Canada as a major tax haven, but Chevron takes the cake in terms of taking advantage of the country's tax laws. This article from The Guardian captures part of the problem.

Netherlands: A bombshell complaint filed days ago by several unions documented how Chevron uses the Netherlands to funnel billions of dollars of profits made through its subsidiaries in other countries (among them Argentina, Venezuela and Nigeria) to lower its tax rates in the places it actually operates. Although we don't have the complaint, we do have this Reuters story that documents what's in it. The article explains how Chevron is once again taking the lead in using the laws of an unsuspecting country to screw populations throughout the world who stand to benefit from the proper payment of taxes in the locales where production actually takes place.

Corporations like Chevron often claim that "tax avoidance" is perfectly legal. While we won't grant the company that much credit, "tax avoidance" seems to have migrated into the realm of "tax cheating" when it comes to Chevron's business practices in Australia, Canada, and the Netherlands.

In our experience, this is par for the course for Chevron CEO Michael Wirth and General Counsel R. Hewitt Pate. This duo and their lawyers from the U.S. firm Gibson Dunn have paid bribes to witnesses and created fraudulent evidence to rip off the Indigenous peoples and farmer communities of Ecuador whose cultures Chevron has decimated. Speaking of cultures, Chevron's is clearly rotten.

We will continue to follow the Chevron "tax cheat" story as information emerges.

Saturday, September 8, 2018

Here Are The Three Secret Trade Arbitrators Undermining Indigenous Groups In Ecuador's Rainforest

The three men above are being used by Chevron as a secret kangaroo court to try to undermine enforcement of the landmark $12 billion Ecuador pollution judgment resulting from the company's deliberate dumping of billions of gallons of cancer-causing oil waste into the rainforest. This so-called "court" is widely seen as a joke: it uses arbitrators who actually are private lawyers who charge commercial rates and reap enormous fees. They meet in secret and in this case repeatedly refused to let the Indigenous peoples of Ecuador participate or even attend as observers.

The discomfiting scenario of a private court for corporations might be the future look of "justice" in a world where the Koch Brothers and their allies wish to hide the gruesome details of corporate wrongdoing and corruption. It is also where outcomes easily can be rigged against human rights victims, as Chevron's lawyers tried to do here. The proceedings were held mostly in secure conference rooms of luxury hotels. (See here for how Chevron's law firm Gibson Dunn uses fraud to attack the Ecuador judgment; here for a blistering critique of the secret trade court by Ecuadorian community leader Carmen Cartuche and two lawyers for the affected communities.)

In the Chevron case against Ecuador's government, the names of the conflict-ridden trade arbitrators who work faithfully in service of the corporate class are Grigera Noan, Vaughn Lowe, and V.V. Veeder. Each made an estimated $25 million by charging standard commercial rates of $1,000 per hour to oversee Chevron's secret arbitration, which began in 2009 and is ongoing. These men for years have refused to disclose the exact amount of riches they have reaped by undermining the claims of the rainforest communities of Ecuador.

In short, these white males enriched themselves at the expense of the Indigenous peoples Chevron decimated with cancer as a result of its systematic and deliberate toxic dumping of 4 million gallons of produced waste water daily into rivers and streams. Notably, the trio have ignored demands by several civil society groups to disclose details of their inner workings. U.S. lawyers Max Gitter (see here), R. Hewitt Pate (see here) of Chevron, and Randy Mastro (here) and Ted Boutrous of the ethically-challenged Gibson Dunn firm are also on the growing list of those who have profited personally courtesy of Chevron's big money assault on the rainforest communities.

This week the arbitrators predictably carried out one of the final acts of their solemn duty to try to deliver impunity to a major corporate human rights violator. They purported to "rule" -- in contradiction to the robust findings of four layers of public courts in Ecuador -- that the judgment against Chevron achieved after two decades of litigation should be nullified. They relied on a fake "fraud" narrative Chevron concocted that was based largely on the testimony of an admittedly corrupt witness (Alberto Guerra) paid $2 million by the company to lie in open court. Chevron's lawyers coached Guerra for 53 consecutive days before he told his made-up story; Guerra later admitted under oath that he had lied while a forensic report proved he lied.

Most importantly, they refused to hear from the Indigenous peoples against whom this judgment is ultimately directed. No wonder they wanted to keep it secret. Could any "court" process be any more illegitimate than this one?

Guerra's testimony -- which resulted in a criminal referral letter of Chevron and its lawyers to the U.S. Department of Justice -- utterly destroyed Chevron's claim about the supposed "ghostwriting" of the judgment. "Money talks, but gold screams," Guerra had told Chevron's lawyers in 2011 as he demanded exorbitant and illegal fees for his witness testimony. Guerra is still on Chevron's payroll years later, living in a luxurious house near Chicago. We estimate he's made at least $5 million from the company after his last salary in Ecuador was $6,000 annually. Chevron even pays his income taxes. But the arbitrators in their decision almost completely ignored these credibility problems.

The three lawyer-arbitrators tried to overturn 17 separate appellate judges in Ecuador who affirmed the pollution judgment based largely on 105 technical evidentiary reports and reams of witness testimony. Ecuador's Constitutional Court validated Chevron's responsibility for its toxic dumping in a unanimous decision issued in July of this year. But the secret arbitrators have also done the world a favor of sorts. Their ruling vividly illustrates why the public needs to get rid of these anti-democratic, pro-corporate trade courts once and for all. No trade treaty should ever again have a provision for allowing private arbitration for the corporate class.

The double standard of the private trade court concept is amazing, if not patently racist as applied to the current situation in Ecuador. Chevron loses a case in a regular public court where it had accepted jurisdiction and then gets another bite at the apple in a Kafkaesque proceeding where the opposing party -- in this case Indigenous peoples and impoverished farmer communities who have the most important interest in the dispute  -- can't participate.

The morally bankrupt trade process uses indecipherable standards rather than actual laws. Until Chevron came along, no trade arbitration panel in history had tried to "reverse" a ruling by the highest court of a sovereign nation involving a litigation between private parties. To do so is an open assault on Ecuador's sovereignty and its independent judiciary and is illegal as a matter of international law, according to dozens of scholars. For this reason and others, we believe the latest trade court ruling is unenforceable and Chevron will look foolish if it tries to use it to block the ongoing judgment enforcement actions to seize company assets in Canada. (Canada's Supreme Court already has backed that effort of the rainforest communities in a unanimous opinion.)

Speaking of double standards, exceptions to the normal rules of justice apparently must be made when Indigenous groups turn the tables on a powerful oil company. Commercial companies get a free pass to the secret arbitration when they can't win in public courts by the normal rules of evidence. But not real human rights victims. According to the arbitrators, these dangerous Amazonian peoples who apparently never merited even a seat in the hotel courtroom must be stopped cold in what seems like a modern-day version of the Indian Removal Act passed in 1830 by the U.S. Congress. While we believe this secret trade court cannot stop the enforcement of the Ecuador judgment, it is still a disgusting example of the state of our world in the age of Trump and the Koch Brothers.

We remember that day way back in 2009 when Chevron General Counsel Charles James initiated the secret arbitration as he was about to lose the pollution judgment in the company's preferred forum of Ecuador, where it had insisted the trial be held. It made the request under the supposed authority of the U.S.-Ecuador bilateral investment treaty. This treaty came into effect in 1997 even though Chevron already had fled the country in 1992.

But like the NAFTA treaty, this bilateral trade treaty allowed "investors" to sue host governments for any "complaint" they might conjure up. In this case, Chevron's "investment" was not drilling for oil and then dumping its toxic waste; it was the very fact of its lawsuit brought after the treaty came into effect. Could anything be more unfair? Would you believe us if we told that the Ecuador government official who sold out his country to corporate interests by signing the treaty (Benjamin Ortiz) has served as Chevron's spokesman in Ecuador on the environmental litigation for several years? That's how Ortiz has enriched himself since he left his government post.

Ecuador under a prior government opposed the entire arbitral process as illegitimate. But the three arbitrators claim they can determine their own jurisdiction with millions of fees waiting in the wings. Guess how they ruled? They granted themselves jurisdiction in yet another example of a conflict-ridden process. Nothing about this deserves any respect from any real court. And Ecuador's President, Lenin Moreno, should strongly defend his nation's citizens in light of this vicious and illegal Chevron assault clothed as an arbitral ruling.

Ecuadorian community leader Carmen Cartuche, who helped bring the lawsuit against Chevron, appropriately summed up the secret court decision as follows:
The decision by three male arbitrators who claim they have a right to "judge" Amazonian Indigenous peoples and impoverished farmers secretly from the comfort of luxurious hotel conference rooms in the United States and Europe is outrageous. This decision is an attempt by the global corporate establishment to use unfair trade agreements to block legitimate social movements. This decision is legally irrelevant and will be ignored as the travesty of justice that it is. It will not block our litigation to hold Chevron accountable in Canada so that just compensation can be paid to the thousands of people who died of cancer or otherwise been harmed by the slow genocide the company is imposing on our country.