Wednesday, May 9, 2012

Wall Street Journal Editorial Page Preparing Fourth Hit Job On $18 Billion Ecuador Judgment

We are flattered to report that the Wall Street Journal editorial page is once again trying to carry water for Chevron's public relations flaks over the company's $18 billion judgment for creating the world's worst oil disaster in Ecuador.  Chevron has hired six public relations firms and almost 500 lawyers to undermine the communities that sued the company.

The irrepressible Mary Anastasia O'Grady – who purports to comment on events in Latin American as a columnist – called Karen Hinton, the spokesperson for the Ecuadorians, and, in a hurried interview yesterday, asked a series of questions reflecting Chevron's misleading talking points about the Ecuador trial.  O'Grady said she is preparing a column on Chevron's claim that an expert report submitted to the court was "secretly" authored by the plaintiffs.  This is one of Chevron's urban myths that has been fully debunked by the plaintiffs and rejected by Ecuador's appellate courts.

Let's test O'Grady's integrity.  Hinton sent her the following email responding to her questions in writing.  Read it and judge for yourself how much of these facts make it into O'Grady's upcoming column, should she indeed publish it:


I want to reinforce and expand upon my answers to some of the questions you raised today in our phone call about the Chevron case in Ecuador. I am hoping you will strongly consider all of my comments as you write your column and not gloss over them. 

It is clear your questions are based on Chevron's misleading talking points. One of my colleagues informs me that you interviewed him by phone in 2007 and that you subsequently canceled a meeting where he was prepared to present information refuting Chevron's arguments as lies. Even though you did not write then on this issue, the editorial page of your newspaper has subsequently staged three separate attacks against the case based on Chevron's misinformation and extrajudicial strategy to undermine the proceedings to evade accountability for creating what is likely the world's worst oil-related disaster. We wrote letters to the editor in response to each of those articles correcting various inaccuracies. We hope that process does not repeat itself with your column.

We also have confirmed that the WSJ editorial page never disclosed that at least one of the two unsigned editorials attacking the Ecuador case was written by Bret Stephens, a columnist and now deputy editorial page editor who previously had written a signed column on the same issue with the same viewpoint.   

Here is some additional perspective on some of the issues you raised:

On whether Richard Cabrera met with the plaintiffs before he was appointed the global expert, and whether he and the plaintiffs planned what the global report would say:

Chevron has presented thousands of pages of papers and videos to the Ecuador court on this issue, and that court rejected the material as irrelevant and disregarded the results of the Cabrera report in making its decision finding Chevron liable.  Instead, it based its decision on 104 other technical reports -- the majority submitted by court experts named by Chevron, paid by Chevron, and whose reports were written by Chevron lawyers -- in deciding that Chevron dumped billions of gallons of toxic waste into the Amazon, abandoned hundreds of toxic waste pits, flared poisonous gas into the air, and therefore should pay for a clean-up of what experts consider to be the world's worst oil-related disaster.

That said, there is nothing wrong with the Cabrera report. The contents of that report -- which relied heavily on Chevron's own technical reports submitted as evidence that proved contamination -- is valid from a technical and empirical standpoint.  Some of the information and conclusions were presented to Cabrera by top-level technical experts, consistent with court rules. The fact Cabrera adopted these findings and relied on his own independent soil and water sampling reflected his judgment that they were valid and reflected the evidence.  This is no different than what judges do all the time in the U.S. when presented with findings of fact and conclusions of law by the parties in a disputed litigation. The fact Cabrera was paid exclusively by the plaintiffs was required by the Ecuador court; other court-named experts were paid exclusively by Chevron, also consistent with court rules that require the party asking for a report to pay for it.  Again, this is no different than a party in the U.S. paying for the costs of an expert witness.

Chevron boycotted the Cabrera report process because it did not want to legitimate any aspect of the proceeding that it knew it would lose based on the scientific evidence. Thousands of soil and water samples had already been taken by both parties that showed extensive contamination at 100% of Chevron's former well sites.  Chevron knew Cabrera had access to this data, and this fact terrified the company's lawyers. So Chevron now reaps what it sowed with its unilateral boycott: a report that does not reflect its point of view in any way, shape, or form.  But it did succeed in getting the report knocked out of evidence by waging an unrelenting, entirely improper pressure campaign against the judges presiding over the trial.

When Chevron says the plaintiffs met secretly with Cabrera, that is a complete misrepresentation of the process.  The plaintiffs met with Cabrera (and with other experts appointed by the court) consistent with court rules, as did Chevron's lawyers.  We remind you that to the extent these rules seem different than those in the U.S., it does not mean they reflect an inferior system.  In fact, these procedures are consistent with the rules in most civil law countries and have been confirmed as valid by multiple legal experts in Ecuador and elsewhere.  Chevron has been unable to cite one statute or court rule justifying its position on the Cabrera report.  

Chevron also has tried to market two additional lies about Cabrera -- that he was paid with a "secret" bank account, and that he was "bribed".  Both of these accusations collapse when viewed in light of the evidence. There was no secret bank account. Cabrera was always paid for work performed consistent with court rules and the contractual obligation of the parties to pay for experts who produced reports they requested.

On whether attorneys for the plaintiffs will be paid $5.7 billion in fees. The judgment categorizes how $9 billion will be spent on cleanup, water and health. Where does the rest of the money go?

If you are relying on documents Chevron obtained through discovery from U.S. counsel to opine on this issue, we are putting you on notice that those documents have been interpreted inaccurately by Chevron lawyers and in any event have been superseded by other documents.

The vast majority of the judgment will be used to remediate Chevron's horrific and deliberate contamination of the rainforest -- a contamination so great in magnitude that it dwarfs the size of the BP disaster in the Gulf of Mexico where liability has been estimated to be a minimum of $40 billion.  By comparison, Chevron is getting off easy in Ecuador because the court rejected several claims for damages made by the rainforest communities.  The money will be used to remediate contaminated soils and groundwater, provide clean drinking water to dozens of communities, create a health care infrastructure to deal with high cancer rates in the region, and to restore indigenous lands.  The attorneys will be paid a modest contingency fee per private contract with the affected communities -- a fee that is low compared the two decades of work spent preparing and litigating the lawsuit, and the risk undertaken by lawyers in advancing their own funds and time in the pursuit of a fair result for their clients.

On Chevron's contention that the Cabrera report and the court judgment contain identical language from documents written by the plaintiffs.

As in the U.S. court system, a court expert or judge often adopts language offered to the court by one of the parties. What happened in Ecuador was no different. Cabrera accepted some of the documents we submitted because his own testing proved their accuracy.

Chevron's assertions about the "ghostwriting" of the judgment is a complete lie and reflects the company's desperation. The documents in question have been submitted to the court in various forms, either as direct submissions from the plaintiffs or Chevron, or via expert reports.  In fact, none of Chevron's so-called "experts" on this issue has even reviewed the entire trial record.  And some of their conclusions simply do not withstand serious inquiry.

This is nothing more than last-minute hysteria by a desperate litigant.  Chevron stalled the case for ten years in U.S. courts, thinking it would disappear once a U.S. federal judge moved it to Ecuador.  When the evidence of contamination began to pour in, Chevron began to cry foul as part of a concerted strategy to undermine the very court system it repeatedly had praised. The only way out was to either be held accountable or concoct accusations of fraud. Now that the communities have won a landmark victory and are preparing to enforce their judgment, Chevron is appealing once more to journalists with one-sided presentations of facts that have no relationship to the body of evidence that overwhelmingly proved Chevron's guilt.

Finally, we have extensively documented Chevron's violations of anti-bribery statutes in the U.S. and Ecuador in various sworn affidavits.  Most recently, Chevron offered a $1 billion bribe to Ecuador's government to extricate itself illegally from the lawsuit.  More information on this and other examples of Chevron's malfeasance and criminality can be found on the website


We hope and indeed expect our version of the facts will be reflected in your analysis and that you will not allow your column to become a de facto public relations tool for Chevron's unethical attempt to evade justice.


Karen Hinton

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