Monday, December 30, 2013

Chevron Became Terrified of Its Own Witnesses During Retaliatory RICO Trial

Looking back on Chevron’s retaliatory RICO trial, it is clear that the oil company’s lawyers were so terrified of some of their own witnesses that they literally ordered them to stay away from court.

Remember Douglas Beltman and Ann Maest, the scientific consultants for the rainforest indigenous and farmer communities in Ecuador that were devastated by Chevron’s toxic dumping?  Beltman and Maest helped the communities win their historic judgment against Chevron in Ecuador’s courts.  The judgment recently was affirmed by Ecuador's Supreme Court.  

Several months ago, desperate to evade a court order that it clean up its toxic mess, Chevron launched a public relations offensive in the U.S. that claimed Beltman and Maest had “disavowed” their work for the communities harmed by Chevron's pollution.  In opening arguments in the RICO case in October, Chevron lawyer Randy Mastro touted Beltman and Maest as key witnesses against New York human rights lawyer Steven Donziger, the company’s principal target.

So why did Mastro and his team of 114 lawyers at Gibson Dunn decide to bail on Beltman and Maest?  And what does the sudden disappearance of these witnesses tell us about the validity of Chevron’s RICO case? 

Mastro knew that under cross-examination Beltman and Maest almost certainly would have delivered damning testimony against Chevron.   
As far as the case is concerned, Chevron’s failure to call these witnesses underscores yet again how weak the company’s evidence is -- which is why Chevron dropped damages claims on the eve of trial to avoid a jury of impartial fact finders. 

The most important of Chevron’s witness desaparecidos is Beltman, a nationally-acclaimed scientist who in 2009 appeared in a 60 Minutes segment condemning the company’s decades-long record of toxic dumping in Ecuador.

Last Spring, Chevron secured an affidavit from Beltman which the oil giant claimed shows he had “disavowed” his work for the communities and recanted his comments to 60 Minutes. In April 2012, with much fanfare, Chevron issued a corporate press release trumpeting Beltman’s supposed retreat.   As usual, the company failed to disclose key facts.

One of those facts is that Chevron had aimed a veritable bazooka at Beltman’s head to get him to sign the affidavit.  The company had named Beltman as a RICO defendant and threatened to bankrupt Stratus if Beltman didn’t capitulate.  Chevron sent a series of shakedown letters to clients of Stratus, falsely claiming that Beltman had been found to have committed fraud. 

The reality is that Beltman never changed his opinion that Chevron is responsible for massive and life-threatening toxic contamination in Ecuador.  Read this blog for more on the back story of Chevron's campaign of economic extortion to silence witnesses.  Citing this evidence, 60 Minutes flat out refused Chevron's bogus demand that it issue a "correction" to the original story.

In exchange for Beltman’s affidavit -- clearly written by Chevron lawyers -- Chevron dropped Beltman and Stratus as defendants in the RICO action. At the same time, Stratus agreed to drop a lawsuit against Chevron where the consultancy had accused the oil giant of engaging in a “an extrajudicial campaign of malicious defamation.”  Read the Stratus lawsuit to get a sense of how vicious Chevron’s strategy had become.

The reason Mastro chickened out with his key witnesses is pretty simple.  Beltman (and Maest) only “disavowed” their work on a single technical report that the Ecuador court excluded as evidence.  Neither were involved in the more than 100 other technical reports that the Ecuador court relied on to find Chevron liable.  In other words, the affidavits were a big non-event in terms of the trial.

They were a  nice illustration of Chevron's venal tactics.  Chevron did not want the court nor journalists to hear Beltman’s truthful testimony, so Mastro squelched it.  Beltman’s real view of Chevron’s bad acts can be seen in this power point presentation he prepared in 2010. Or read his sworn deposition testimony from 2011. 

Nearly the exact same thing happened with another of Chevron’s favorite witnesses, the American technical expert Dr. Charles Calmbacher. On the first day of the RICO trial, Mastro said Calmbacher was going to testify.  But he also was a big no-show.

The reason: Calmbacher lied in a pre-trial deposition about disavowing his own court-ordered technical reports prepared for the communities.  In fact, the evidence shows that Calmbacher found extensive toxic contamination at the former Chevron sites he inspected and he turned on the communities out of spite over a fee dispute.  See pp. 53-55 of Donziger’s sworn witness statement for the documentation.

Another of Chevron's disappearing witnesses, the Ecuadorian technical expert Fernando Reyes, signed a sworn affidavit earlier this year that was trumpeted by the company's PR flaks.  But in his pre-trial deposition, Reyes undermined a key plank of Chevron’s fake narrative by saying that it was normal in Ecuador for court-appointed experts to work closely with the parties.  So Mastro, who ran the case like a public relations campaign, silenced him too.

Other Chevron witnesses who were never called to court also include two of Donziger’s former associates, Laura Garr and Andrew Woods.  What happened?

Chevron stood nothing to gain once it got the public relations hit in opening arguments of falsely claiming the pair had turned on Donziger.  You can bet that if called to the witness stand, both would have lauded Donziger for his commitment to his clients even if they griped on occasion about his demanding management style.  So they were told to stay away.

Chevron always has used the RICO case to pre-package witness affidavits drafted by its own lawyers and then peddle them to Judge Kaplan and the media. In fact, these ghostwritten affidavits were central only to Chevron’s public relations strategy to distract attention from its environmental crimes in Ecuador by “demonizing” Donziger and his clients.

Once the trial was on and the rubber had to meet the road, Mastro shuddered at the thought that any of the pre-packaged testimony might veer off-script.   It's also why he abruptly aborted his cross-examination of Donziger, who was making the self-annointed former "mob prosecutor" look a bumbling fool who was lost in the weeds and could not frame a question properly.

Several months ago, a reporter at American Lawyer (Michael Goldhaber) declared the entire Ecuador case over after former Ecuador Judge Alberto Guerra signed a sworn affidavit claiming that the plaintiffs had bribed a sitting judge.  Almost overnight, based on a Chevron-drafted affidavit, Guerra became Godhaber’s new media sensation. 

Unlike Beltman and Maest, Chevron had no choice but to call Guerra to the stand.  His claims were just too important.

Under cross-examination, Guerra wilted.  He admitted he was a criminal who had fixed dozens of cases and that Chevron was paying him (in violation of federal law) vast sums of money for favorable testimony.  Guerra’s show trial performance was a hilarious illustration of just how weak Chevron’s case really is.  Read pp. 31-41 of this post-trial brief to understand how Guerra’s testimony is riddled with lies, inconsistencies, and constantly changing stories. 

Guerra played Chevron for a fool, and Chevron played Goldhaber for a fool.  And Mastro, a leader of a practice group that has been consistently nailed by courts for engaging in unethical litigation practices, keeps Chevron’s false hope alive while billing CEO John Watson an estimated $400 million annually for services that have caused nothing but more and more risk for the company’s shareholders.

Chevron is now left with precious little of long-term value for its huge investment in the RICO case.  It still has trial judge Lewis A. Kaplan as the sole “Decider” of the case (at least before the appellate courts weigh in).  But Kaplan is seriously lacking in credibility due to his xenophobic comments toward the Ecuadorians, his biased promotion of Chevron’s cause, and his grandiose desire to serve as a de facto appellate panel for the Ecuadorian judiciary.   Kaplan's expected decision in favor of Chevron will be laughed at by enforcement courts around the world and has little chance of surviving appeal in the United States.

Kaplan’s hyperactive efforts to jump through tighter and tighter hoops to favor Chevron has been nothing short of astonishing to the world legal community.  See this brief from international legal scholars, this brief from New York University law professor Bert Neuborne, and this post-trial brief in the RICO case to get a sense of the man’s intellectual dishonesty and sheer arrogance.

John Keker, known as one of the most formidable trial lawyers in the nation who counts Google among his many clients, said in his recent motion to withdraw that Kaplan had allowed the RICO case to degenerate into a “Dickensian farce” due to his mismanagement of the docket and his “implacable hostility” toward Donziger, who has battled on behalf of the rainforest communities for two decades.

Chevron has played a cynical game of carrot & stick, manipulating witnesses with exorbitant payments (Guerra) or ferocious personal and economic pressure (Beltman and Maest).  Team Mastro and the Lords running Chevron would never get away with it if the case were before a judge who wasn’t clearly biased against the Ecuadorians and Donziger.

All of Chevron’s testigos desaparecidos were people that the oil giant could not manipulate enough, compensate enough, or intimidate enough to be sufficiently complicit with its vicious intimidation campaign against the rainforest communities.  And while the oil giant can apparently make witnesses lie, flip, or simply vanish, nothing can make the company’s responsibility for suffering in Ecuador disappear.

Wednesday, December 18, 2013

Prominent Organizations Release Open Letter Condemning Chevron's Tactics in Ecuador Case

Today, Amazon Watch—longtime advocates for the Ecuadorian indigenous and farmer communities affected by Chevron's toxic legacy—released a letter from a dozen prominent human rights and environmental organizations condemning Chevron's abusive tactics related to the Lago Agrio litigation.

In addition to decrying the abusive nature of Chevron's scorched earth legal, political, and media strategy in the case, it warns of the significant negative implications of Chevron's efforts to evade accountability for its devastation in the Amazon:

In a press release announcement Amazon Watch excerpts the sign-on letter:
"Chevron's actions set a dangerous precedent and represent a growing and serious threat to the ability of civil society to hold corporations accountable for their misdeeds around the world."
Besides Amazon Watch, signatories to the letter include such high-profile organizations as frontline human rights and environmental legal advocates EarthRights International, global climate change activist powerhouse,  and eminent environmental movement stalwart Sierra Club.

Sierra Club Executive Director Michael Brune had this to say today:
"The people of Ecuador have a right to defend their families from oil industry pollution. Journalists have a right to expose the reckless practices that are destroying Amazon communities and ecosystems. Chevron's bullying tactics undermine those rights, and the Sierra Club supports the individuals and organizations that are standing up to Chevron's irresponsible corporate behavior."
Under headers highlighting some of the tactics Chevron has employed in an effort to evade accountability for its crimes in Ecuador, the letter outlines the way Chevron 'Attacks Free Speech,' 'Vilifies Critics,' and 'Undermines the System of Justice and Judicial Sovereignty.'

Under this last header, the letter explains:
In a threat to the nature of national sovereignty and an independent judiciary, Chevron took the unprecedented step of attempting to use an obscure arbitration procedure under the mantle of the U.S.-Ecuador Bilateral Investment Treaty to nullify the ruling of a sovereign domestic court even though Ecuador was Chevron’s chosen forum. This despite the fact that Ecuador was not even party to the 19-year court case as the plaintiffs were the 30,000 affected indigenous and campesino people, and the case itself began before the Investment Treaty was even signed. The affected peoples have no right to participate in the arbitration, which will be decided by three private lawyers, who purport to have the authority to overrule the Ecuadorian courts – raising threats to the sovereignty of justice systems around the world, which could be rendered powerless in the face of truly unlimited corporate power.

The dozen current signatories to the letter are currently circulating the letter, soliciting additional signatories, and conducting outreach to educate allies and colleagues working on human rights, environmental sustainability, and corporate accountability, among other key issues for which Chevron's tactics have profound implications.

Click on the letter below to read and/or download:

Institutions, Organizations and Individuals Advocating for Corporate Accountability Condemn Chevron’s Retaliatory Attacks on Human Rights and Corporate Accountability Advocates and See it as a Serious Threat to Open Society and Due Process of Law

And click here to read Amazon Watch's press release announcing the letter.

Thursday, December 12, 2013

After the Smoke Clears: What Chevron’s RICO Trial Means, With Hindsight

Now that the evidentiary phase of Chevron’s retaliatory RICO bench trial against New York human rights lawyer Steven Donziger and his Ecuadorian clients is over, we can take a deep breath and analyze what really happened before the controversial Judge Lewis A. Kaplan.  The answer is not much, other than one of the greatest abuses of the American civil justice system ever. 

First, let’s take a step back and look at what is undisputed.  As Paul Paz y Mino of Amazon Watch wrote in his recent post at Eye on the Amazon blog, Chevron admits to dumping billions of gallons of toxic waste into Ecuador’s Amazon when it operated in the country from 1964 to 1992 under the Texaco brand.  A trial court decision finding Chevron liable for this dumping has been affirmed unanimously by Ecuador’s Supreme Court.  Since Chevron refuses to pay, judgment enforcement actions filed by the villagers continue to target billions of dollars of Chevron assets in Canada, Argentina, and Brazil.  Chevron is also hamstrung by its longstanding promise to U.S. courts to pay the $9.5 billion Ecuador judgment as a condition of the dispute being moved to the South American nation in 2002.

For these and other reasons, we always have maintained that the RICO trial was more an expensive therapy session for Chevron’s management team than a bona fide legal case.  None of the key Ecuadorians named by Chevron as “defendants” even showed up.  Given the bias of Judge Kaplan and the utter arrogance in the idea that a U.S. judge could rule on issues in the case already decided by Ecuador’s Supreme Court, Chevron is likely to face a ferocious backlash from foreign judges if it tries to peddle Kaplan’s ruling abroad.  

Chevron’s fundamental allegation was that it was treated unfairly during the trial.   That’s typical public relations blah-blah carted out after an oil company loses a trial fair and square.  Chevron fought for ten years to move the underlying environmental case from the U.S. (where it was filed in 1993) to Ecuador.  The company submitted 14 sworn affidavits to a U.S. federal court praising the fairness of Ecuador’s courts.  (It started attacking those courts only when the evidence at the trial pointed to its guilt.) Chevron recently won two significant legal cases in Ecuador against the state-owned oil company, PetroEcuador. The Ecuador Supreme Court just last month lowered the company’s liability by approximately $10 billion, a draconian result for the long-suffering rainforest communities who have been waiting almost 50 years for a clean-up.  That hardly sounds like the fix was in.

The RICO case is the most recent installment of Chevron’s global forum shopping to evade accountability for its toxic dumping. The company has filed thousands of motions in more than 30 U.S. courts to try to undermine the Ecuador judgment.  It also filed two claims against Ecuador’s government in a futile attempt to shift its own clean-up responsibility to Ecuadorian taxpayers.  It has attacked more than 100 supporters of the Ecuadorians, including bloggers and activists, with subpoenas seeking their private communications.  It has dispatched powerful lobbyists, including former Clinton Administration officials Mack McLarty and Mickey Kantor, to pressure the U.S. government to cancel trade benefits for Ecuador.  It also has hired six public relations firms to promote the fake narrative that the nation’s third largest oil company is being victimized by indigenous groups who lived mired in its oil contamination.  An internal Chevron memo from 2009 acknowledged the company’s long-term strategy for Ecuador was to “demonize Donziger” and turn the tables on the villagers rather than litigate the case on the merits.   That’s the context for the RICO case.

Chevron wanted the underlying claims to be heard in Ecuador as long it felt it could engineer its desired outcome.  In October 2003, company lawyer Ricardo Reis Veiga desperately tried to torpedo the litigation on the first day of trial by persuading the country’s Attorney General to do something entirely unethical and illegal – call the trial judge to urge him to throw out the case that Chevron said it would litigate in Ecuador.  Once judges in Ecuador began to resist Chevron’s pressure campaign, the company high-tailed it back to the friendly confines of Judge Kaplan’s courtroom where the activist judge was more than happy to grant a do-over.  

Almost everybody expects Judge Kaplan, who does not even speak Spanish, to rule in favor of Chevron based on his interpretation of Ecuadorian laws already decided by that country’s highest court. 

The RICO case remains a sideshow that Chevron is using to try to distract its shareholders and employees from evidence of its crimes, fraud, and human rights abuses in Ecuador – as documented in this stunning affidavit by Ecuadorian lawyer Juan Pablo Saenz or in this video or in this interview with Donziger on his website.
 But it is a stretch to think that any Kaplan ruling in favor of the oil giant will matter to the foreign enforcement courts who will decide under their own laws whether Chevron pays up.   (By the way, Chevron can raise as a defense all of its so-called “fraud” evidence that it is using during the RICO trial in the enforcement courts.)

Chevron’s trial of mass distraction before Kaplan also poses a different kind of threat to our body politic in the U.S.  As Paz eloquently wrote in his blog:

Unfortunately, there's even more going on here than a Chevron-friendly judge misusing his power to the detriment of 30,000 long-suffering people in Ecuador. This is the furthering of a strategy that corporations will continue to develop to crush the free speech of critics and limit our chances to fight back on anything resembling a level playing field. This RICO suit and everything Kaplan has allowed Chevron to get away with in its wake is a serious threat to open society and due process of law.
In our recent analysis, Chevron’s RICO Trial to Nowhere, we noted eight specific reasons why Chevron’s case has little or no chance of holding up on appeal in the U.S.

Besides the fundamental problem that Chevron failed to prove its case, there is also simply no remedy that any U.S. court can conceivably fashion to block a foreign court judgment.  When there’s no conceivable remedy, there’s no “case or controversy” as required by the U.S. Constitution.  And when there’s no case or controversy, there should be no trial. 

You won’t be hearing about the flaws in Chevron’s case from R. Hewitt Pate, the company’s general counsel.  With an air of smugness, Pate sat in Kaplan’s courtroom for six weeks while collecting some of his $7.5 million annual salary. After strong-arming Chevron to invest astonishing sums in the RICO case, he no doubt wanted to be the man to spin the daily results to Chevron’s Board of Directors and CEO John Watson.  (Watson, who oversaw Chevron’s purchase of Texaco without adequately vetting Texaco’s pending Ecuador liability, has long been the target of shareholder ire over his mishandling of the litigation.)

Pate’s effort to control the narrative before Chevron’s Board and shareholders has to be pure jiu-jitsu.  Here is a thumbnail sketch of Chevron’s legal problems with the RICO case:

Kaplan has no remedy to help Chevron
:  Having denied a jury trial and excluded key relevant evidence that contradicts Chevron’s narrative, Kaplan will no doubt “find” in favor of the company.  But once that happens, there is no place to go.  Under RICO, a private party like Chevron has no right to injunctive relief – a position the U.S. Department of Justice under the Bush Administration repeatedly asserted. Few judges would have the temerity to even think they could allow a law passed by Congress to bring down the Mafia to be twisted by a corporation to attack indigenous groups and human rights lawyers who held it accountable for its crimes.  That’s a rather scary assault on the very nature of political advocacy.  The Second Circuit Court of Appeals in New York already ruled in 2012 that the Ecuador rainforest communities “may seek to enforce their judgment in any country in the world where Chevron has assets.”  Nothing that Judge Kaplan does can change that.

Kaplan cannot act as the appellate court for Ecuador’s judiciary:
  It is an axiom of international law that judges in one country are not allowed to overrule court decisions of another country.  In Ecuador, three layers of courts – most recently the nation’s highest court – have upheld the trial court decision holding Chevron liable for dumping billions of gallons of toxic waste into the Amazon.   Judge Kaplan knows almost nothing about Ecuador; he cannot even read the trial court decision or the record on which it was based.  Yet Judge Kaplan has suggested that he plans to rule on the validity of Ecuador’s entire judicial system as part of his grand plan.  Doing so will look plain silly to the appeals court and even sillier to foreign judges being asked to enforce the Ecuador judgment. 
Kaplan manipulated evidentiary decisions:  Even after denying him a jury, Judge Kaplan would not let Donziger mount a real defense.  He refused to admit evidence of the extensive contamination relied on by the Ecuador court to find Chevron liable.  He excluded more than 100 technical reports from Chevron and other sources that documented high levels of Total Petroleum Hydrocarbons and other harmful toxins (such as lead, barium, zinc, and Chromium 6) at the company’s 376 former well sites.  This evidence was critical to show the Ecuador judgment was valid and not procured by fraud, as Chevron claims.  Judge Kaplan also refused to hear evidence of Chevron’s “unclean hands” – its crimes, fraud, and threats to judges and court personnel to sabotage the trial.  It is a basic legal principle dating back centuries that the party that arrives in court with “unclean hands” is not entitled to relief.  To deal with this problem, Judge Kaplan whitewashed the official record by excluding the extensive evidence of Chevron’s “unclean hands”.

Kaplan’s temperament is not befitting a federal judge
:  We have reported extensively on Kaplan’s displays of bias against Donziger and the Ecuadorians, including his comments from the bench disparaging Ecuador’s judicial system and his preposterous claim that Donziger’s goal is “to fix the balance of payments deficit” of the United States.  See here, here, and here.  During the trial, Judge Kaplan treated several witnesses from Ecuador with a conspicuous rudeness – threatening one with contempt if he did not turn over his computer to Chevron, using trick questions on another, and dismissing complaints about cultural insensitivity.  Letting Chevron get away with its final act of trickery – dropping $60 billion in money damages claims on the eve of trial
was the ultimate betrayal of his oath to administer justice fairly. That allowed Chevron to avoid a jury of impartial fact finders, which very likely would have meant another devastating courtroom setback for the company.  Kaplan then heaped insult upon injury by letting Chevron’s staff use the jury deliberation room as a private office during the trial.  Dropping a jury also means Chevron is going to be hampered by a decision from a judge with little credibility domestically and no legitimacy internationally.

Aside from the many legal problems, on the factual front Chevron’s case is a paper tiger.

Once you strip away the flotsam, the company’s supposed  evidence of “racketeering” boils down to two main allegations: (1) that the Ecuador judge was bribed so that the plaintiffs could “ghostwrite” his decision; and (2) that a particular expert damages report submitted by Richard Cabrera was fraudulent. On both points, Chevron’s allegations fall apart upon even superficial examination.

Testimony from Chevron’s lying judge, Alberto Guerra
: Guerra is an admitted liar who testified that he accepted as little as $200 to fix cases.  Chevron paid at least $326,000 in cash and other benefits for his testimony, in violation of U.S. law that prohibits payments to witnesses.   Chevron also hired Ira Kurzban, one of America’s most well-connected immigration attorneys, to help secure political asylum for Guerra and his family even though Guerra faces no threat in Ecuador other than prosecution for his admitted crimes. In exchange for Chevron’s money, Guerra offered a triple hearsay statement that the Ecuadorian lawyers bribed the judge – a charge denied by the judge himself.  (Donziger never even met the judge nor saw him before he testified in Kaplan’s court.)  For more detail, see Donziger’s motion to strike Guerra’s testimony and this blog by Paul Paz.   Bottom line: Guerra is another in a long line of Chevron witnesses bribed by the company to lie.

:  Chevron’s allegation that the 188-page trial court judgment was not written by Zambrano is a joke.  Chevron’s two main experts on “ghostwriting” – Hofstra professor Robert Leonard and 28-year-old tech whiz kid Spencer Lynch – both failed to undertake the much-vaunted “authorship analysis” that could have compared Zambrano’s judgment with his other publicly available decisions or writings to determine if they matched up.   The fact that Chevron did not produce such a report is telling. Chevron likely did commission the study, but buried it when it did not turn out how the company had hoped.

The Cabrera damages report
: One of 106 expert technical reports submitted into evidence, the Cabrera report was prepared in conformity with Ecuadorian law using the same methods Chevron’s lawyers used for the preparation of their expert reports.  (See pp. 46-53 of Donziger’s sworn witness statement for a deconstruction of Chevron’s fraudulent narrative regarding Cabrera.)   In any event, the Ecuador court did not rely on the Cabrera report when finding Chevron liable.  Instead, the court relied largely on scientific evidence of contamination proffered by Chevron’s own experts (such as Ernesto Baca and Gino Bianchi), as Donziger explains in paragraphs 46 and 47 of his witness statement.  The fact that Chevron’s own evidence proved the case against it was reinforced by an independent study conducted by the Louis Berger Group in the United States. 

Other Chevron “evidence” of racketeering is even more absurd.  The fact that Donziger was an aggressive promoter of press releases exposed Chevron’s human rights abuses and corruption in Ecuador is basic political advocacy protected by the First Amendment.  These tools of advocacy have been used by lawyers from Thurgood Marshall to Ralph Nader to Hew Pate himself, who loves to put out press releases
that dupe his own shareholders.   Similarly, Donziger’s suggestion that two Chevron lawyers in Ecuador be criminally prosecuted for engaging in a sham remediation was entirely proper.  Click here to read about how Chevron dropped a key plank of its RICO case to avoid the airing of evidence that would have proven the fraudulent nature of its so-called “remediation” in Ecuador.

Chevron of course will try to promote Kaplan’s decision far and wide. The fact Chevron repeatedly tried to corrupt the Ecuador proceedings and manipulate the RICO evidence will not be mentioned by the oil giant.  Meanwhile, it’s business as usual in San Ramon and Lago Agrio.  The indigenous uprising of the "so-called plaintiffs" in Ecuador is gaining ground around the world while the beleaguered Watson-Pate team digs in its heels.
Chevron needs to keep its corporate jets gassed and have its pilots at the ready.  Pate and his entourage should keep their travel bags packed and ice skates sharpened.  This battle is spreading.

Monday, December 9, 2013

You Get What You Pay for (Perjury, in This Case)

Yesterday, the Huffington Post picked up a post originally published on Amazon Watch's Eye on the Amazon blog, written by Paul Paz y Miño, who spent a few weeks in Judge Kaplan's courtroom following Chevron's retaliatory RICO lawsuit against Steven Donziger and the Ecuadorian villagers who won a historic judgment again the oil giant for its contamination in Ecuador's rainforest.

Paz y Miño's post is a powerful indictment of the so-called testimony of disgraced former judge Alberto Guerra, who was Chevron's star witness during the trial. Read the post below or check it out on The Huffington Post.

You Get What You Pay for (Perjury, in This Case)
Having virtually all the money in the world often means you can buy silence, you can buy time, and you can buy lies. Chevron has demonstrated this time and again in its decades-long battle to evade accountability for deliberately dumping 18 billion gallons of toxic wastewater into the Ecuadorian Amazon.

The problem is that this time what Chevron has bought is a bag of lies in the form of false testimony from a thoroughly disreputable source, and they aren't able to hide the price tag. In the ongoing saga of Chevron's scorched earth legal strategy, last week disgraced former judge Alberto Guerra testified in support of the company's most explosive allegations – that the judgment against Chevron was ghostwritten by the plaintiffs and that his efforts to seek bribes were partly on behalf of Judge Nicolas Zambrano, who issued the historic $19 billion final judgment in the Ecuadorian environmental litigation.

Somehow, Chevron expects the court (and the public) to believe that a man who has admitted to fixing cases and accepting bribes throughout his career as a lawyer and a judge is being honest this time, despite receiving hundreds of thousands of dollars from Chevron for his testimony. And everything depends upon his word, as the supporting "evidence" that he's presented is laughably incomplete (he claims that his computer died, and that's why he has essentially nothing to back up his story). For months Guerra worked with Chevron to prepare his testimony – and yet it was STILL full of gaping holes and contradictions. Amazon Watch was there in court and couldn't help wondering how anyone could take Guerra seriously. Of course, there's no jury in this trial – something Chevron worked very hard to guarantee – just a wall of stone-faced lawyers whose fat paychecks depend upon Judge Kaplan accepting Guerra's testimony as credible (or at least convenient).

It doesn't take a law degree to see that a man who's known for being a "liar for hire" and who has admitted that Chevron is paying him more than 20 times his prior salary is NOT a credible witness. But Chevron is operating in a legal realm of its own creation. It's one where you can sue the victims of your own environmental abuses, where you can prevent consideration of any actual evidence in the case, and now where you can pay witnesses whatever you like to give their "testimony" on your behalf.

These unethical maneuvers have not gone unnoticed by the legal community. Erwin Chemerinsky, a noted legal scholar and dean of the University of California Irvine School of Law stated:
"That Chevron and its counsel have crossed the line here cannot seriously be debated. If a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses. That is precisely what has occurred here."
The Ecuadorians have now moved that all of Guerra's fraudulent testimony be stricken. Remember, this was the best Chevron could do on this case. They know that they can't discuss the abundant evidence of their misdeeds – it still sits in toxic pools by the hundreds in Ecuador – so they've pinned their feeble accusations of a sinister conspiracy on claims of a corrupt legal process. I think they have managed to uncover some corruption, however. So when will Chevron and their legal team be brought before a court to answer for paying a confessed charlatan to commit perjury?

Wednesday, November 27, 2013

Amazon Watch: The Truth Has No Place in Kaplan's Court

Originally posted to Eye on the Amazon, by Amazon Watch's Paul Paz y Miño, published Nov. 26th:

1,400 people have died from oil pollution in Ecuador

You likely already know that Chevron (as Texaco) admitted to deliberately dumping close to 18 billion gallons of toxic foundation waters into the pristine Ecuadorian Amazon over several decades (1964-1992). The company split from Ecuador in 1992, conducted a "remediation" proven to have been a complete sham, and got a $40 million "get out of jail free" card from the government of Ecuador (which specifically did NOT exempt them from any third party action). The results of their malicious acts to save just a few dollars per barrel? A wave of cancers and birth defects (incidentally, a Texaco engineer estimated in the 60's that about $4 million would cover the costs of building industry-standard lined waste pits but Texaco thought that was too costly) and a horrific health crisis that continues to this day.

In what is one of the most unlikely and significant victories in environmental and human rights history, 30,000 indigenous people and campesinos won a $9.5 billion judgment in a class action suit after 20 years of ugly legal battles (now upheld by Ecuador's highest court). Unlikely because of the unprecedented and overwhelming pressure placed on the plaintiffs, their supporters, Ecuador and the Ecuadorian judicial system. And significant as it sets an encouraging precedent that those victimized by powerful corporate forces have hope for justice and a way to fight back.

So how on Earth could this victory be so ridiculously, unethically and illegally turned on its head and evolve into the shocking display that just played out in a US Federal Court? And what repercussions and worrisome precedents could such reckless actions hold for corporate accountability and legal processes around the world?

I just spent most of the last two weeks in that New York City courtroom, where U.S. lawyer Steven Donziger and the Ecuadorian Lago Agrio plaintiffs found themselves accused of extortion and racketeering by the 3rd largest corporation in America. Chevron's sham trial will wrap up today, but thanks to Kaplan's inexplicable decision not to allow any testimony related to Chevron's contamination of the Ecuadorian Amazon – the actual issue here and disaster from which all this started – there's a lot that will never be discussed in the courtroom.

Unfortunately, there's even more going on here than a Chevron-friendly judge misusing his power to the detriment of 30,000 long-suffering people in Ecuador. This is the furthering of a strategy that corporations will continue to develop to crush the free speech of critics and limit our chances to fight back on anything resembling a level playing field. This RICO suit and everything Kaplan has allowed Chevron to get away with in its wake is a serious threat to open society and due process of law.

In 2010, before the Lago Agrio court had even issued a judgment (which Chevron now claims was "ghost written" by the legal team for the Ecuadorians), U.S. Federal Judge Lewis Kaplan had already made up his mind about the case. By issuing a worldwide injunction (later overturned by the 2nd Circuit Court of Appeals) Kaplan began a twisted journey through the looking glass and dragged the United States with him. Based on Chevron's trumped-up charges pieced together from edited Crude outtakes and thousands of emails between an international team constantly battling Chevron pressure tactics, Kaplan decided that a fraud had taken place and encouraged Chevron to file a RICO suit.

Kaplan has never been to Ecuador, knows nothing about its legal system and didn't even consider key evidence or hold a hearing to determine the facts. He doesn't even speak Spanish. His order, according to Professor Burt Neuborne, an extremely well-regarded human rights and civil liberties lawyer who is also the Legal Director of the Brennan Center for Justice at NYU Law School, "[sent] an unmistakable message of American judicial arrogance to the rest of the world that can only result in increased levels of reciprocal judicial suspicion and hostility, with negative consequences for the transnational rule of law."

There will more than a few law journal articles about what Kaplan has done here (much of which is in direct contrast to some of his prior rulings). But here are just a few highlights of the violations of civil rights and perversion of legal power Kaplan allowed or encouraged:
Each of these pieces of Chevron's scorched-earth legal strategy is part of a specific approach to suppress free speech, scare off supporters, create and expand negative rumors, to divide and conquer the opposition. It's already been criticized by criminal defense lawyers familiar with RICO as a way to "send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct."

Even with Kaplan clearly on their side, Chevron does still have to do some of the work. There's a significant difference in the law between extortion by force and extortion by pressure. One allows a meritorious claim as a defense and the other doesn't. Yet, if the trial record does not allow for evidence of the reasons Donziger and the LAPs initially filed their suit – the toxic contamination – how can anyone make a judgment on whether their claims against Chevron have merit? Chevron has to affirmatively prove that the LAPs have no right to recovery, yet they never submitted any evidence related to the actual contamination.

If you cut through the theatrics that have little or nothing at all to do with the claims, Chevron is left with absolutely nothing more than a triple hearsay statement from an admitted liar and corrupt judge, who was paid more than $300,000 by Chevron for his testimony. There's not a single piece of evidence to prove in even the slightest that Judge Zambrano did not write the verdict. Everything Chevron has introduced has been done so to suggest that something nefarious happened without actually proving the claims. Mix that with Kaplan's attitude towards Donziger and all things Ecuador and you have a show trial and nothing more.

Even Kaplan himself appeared frustrated that Chevron's lawyers have not made his task easy by giving him a solid case to base his judgement upon. That is why they dropped the damages claim to ensure no jury would ever hear their case – they'd never swallow it. Nevertheless, most are confident Kaplan will complete the task he set out before the Lago Agrio judgment was even issued – he will hand Chevron a ruling they can tout to anyone who will listen.

It's no matter that it will not be based on the facts. No matter that it will not contain any evidence of actual extortion or illegal acts. No matter that it will be used expressly to violate the order of the 2nd Circuit Court of Appeals when they directed Kaplan not to act as an enforcement court.

Truth is stranger than fiction. These events would seem too outlandish to be true had I not witnessed them with my own eyes. And that is exactly what Chevron is hoping for. They will use Kaplan's verdict for years to come (though the verdict itself will inevitably be faced with legal problems that will likely cause it to fall apart quickly under appeal), and possibly spend billions more hoping empty words based on lies and manufactured "facts" will drown out the voices of the tens of thousands who continue to live with the harsh reality of Chevron's despicable acts in the Amazon.

Monday, November 25, 2013

Human Rights Lawyer's Testimony Censored by US Court

Today, representatives of lawyer Steven Donziger and the Ecuadorean communities ravaged by Chevron contamination issued a press release highlighting the significant passages of Donziger's testimony struck from the record by Judge Lewis Kaplan. From the release:
Judge Lewis A. Kaplan, overseeing Chevron’s RICO trial against Ecuadorian villagers and their lawyers, is suppressing critical witness testimony about Chevron’s extensive contamination of Ecuador’s rainforest that clearly demonstrates a  $9.5 billion environmental judgment against the company is valid, a spokesman for the villagers said Monday.

“Judge Kaplan is again demonstrating his deep-seated animus toward the Ecuadorian communities victimized by Chevron’s pollution,” said Han Shan, the U.S.-based spokesman for thousands of Ecuadorian villagers who in 2011 won a judgment against Chevron after an Ecuador court found the company dumped billions of gallons of toxic waste onto the lands and waterways of the Amazon.

Kaplan’s latest move in the RICO case, which is expected to end tomorrow, was to strike substantial portions of the written witness testimony of Steven Donziger, the New York lawyer who has represented the Ecuadorian villagers since 1993.  Donziger, the main defendant in the case, has disputed all of Chevron’s allegations and has characterized the RICO lawsuit as a form of retaliation against those who held the company accountable for toxic dumping.  Ecuador’s Supreme Court unanimously affirmed the judgment against Chevron earlier this month.
Forbidden by Judge Lewis Kaplan from providing direct testimony on the stand about his two-decade-long involvement in efforts to hold Chevron accountable for its human rights and environmental abuses in Ecuador, Steven instead was ordered to submit a written declaration as his direct testimony.  After submitting his statement, last Monday—November 18th—Steven Donziger finally took the stand.

The lead lawyer for Chevron in the trial, Gibson Dunn's Randy Mastro, announced  that he expected to spend more than a full day cross-examining Steven.   Instead, after halting, confused questioning of Donziger during which the perfectly poised witness answered questions in an easygoing, explanatory fashion, Mastro huddled with furrow-browed Chevron company lawyers at a brief break. After the recess, Mastro, looking rattled, announced in open court that he had only a few more questions.  He soon beat a hasty retreat before the lunch break, lest he offer Donziger further opportunity to deconstruct Chevron's cynical and deceptive narrative. All in all, the day was a huge victory for Donziger. 

Donziger's witness statement was submitted to the court but Chevron predictably filed a motion to strike most of it, in an effort to suppress evidence of the company's environmental crimes and fraudulent cover-up in Ecuador.

Judge Kaplan granted many of Chevron's motions and struck numerous significant passages in the testimony. Judge Kaplan didn't grant all of Chevron's requests, which would have reduced the powerful testimony to a handful of disconnected floating paragraphs.

Click here to read Donziger's complete witness testimony, noting that all of the greyed-out passages are those that Chevron requested be struck, and all of the yellow highlighted passages are those that Kaplan actually struck from the record based on Chevron's motions.

Here are some highlights from Donziger's written testimony:
  • The Ecuador judgment is “valid” based on overwhelming scientific evidence that Chevron “deliberately discharged billions of gallons of toxic waste into Ecuador’s rainforest” resulting in “grave harm and even death to thousands of innocent people.”  (Paragraph # 7)
  • As late as April of 2012, a high-level Chevron executive approached representatives of the rainforest communities to initiate settlement discussions. The contacts did not continue after the villagers filed legal enforcement actions to seize billions of dollars of Chevron assets in Canada and Brazil.  (Paragraph #19)
  • An environmental consultancy in the U.S., the Louis Berger Group (LBG), has independently reviewed the evidence before the Ecuador court and concluded there is ample support for the findings of liability and damages against Chevron.  It also concluded Chevron’s own evidence before the Ecuador court supports a finding of liability against the company.  LBG’s report, commissioned by the government of Ecuador, has been turned over to an arbitration panel hearing a related dispute over the pollution.  Donziger is submitting it as evidence in the RICO trial to help prove the judgment was not obtained by fraud. (Paragraphs #48, 59)
  • Donziger said the preparation of the expert report of Dr. Richard Cabera was “fundamentally consistent with Ecuador law, custom, and practice as it was occurring” in the case against Chevron.  While Chevron tries to focus attention on the report, Donziger said it is irrelevant given that the Ecuador court excluded it.  He also said there was some confusion surrounding the preparation of the report but that the science underlying it remains valid and that excluding it as evidence amounted to a “draconian” sanction against the rainforest communities.  It is Donziger’s most detailed comment yet on that issue. (Paragraphs #91 through 106)
  • Donziger also described how Chevron’s own lawyers publicly called many of the oil company’s own court-appointed experts “independent” even though they paid 100% of their fees and worked closely with them, just as lawyers for the plaintiffs did when referring to Dr. Cabrera.  Chevron has claimed Donziger was trying to mislead the public when he called Cabrera “independent” but Donziger says the term, based on what he knows today, is accurate and was widely used by both parties in the case to describe their own experts. (Paragraphs #79 through 90)
  • Donziger suggested that lawyers on the plaintiff’s team made some minor errors typical in a contentious and long-running litigation, but that those errors paled in comparison to the deeply corrupt acts engaged in by Chevron to sabotage the trial.  Whatever errors were committed did not come close to amounting to fraud, as has been confirmed by Ecuador’s courts.  Although Judge Kaplan has tried to exclude evidence of Chevron’s corruption, Donziger is trying to bring it in as evidence of his state of mind.
  • Donziger again made it clear – as he did in a sworn declaration submitted to Kaplan’s court last March – that he did not bribe a judge in Ecuador and that Chevron’s star witness who so alleges, Alberto Guerra, is corrupt and a liar.  Donziger said Guerra’s testimony is a “massive lie” at the core of Chevron’s case.  A motion to strike Guerra’s testimony is pending before the court.
Donziger's declaration is a profoundly important summary of the two-decade effort of the rainforest communities to hold Chevron accountable. After reading the powerful testimony, and comparing the grey parts—sections Chevron asked to be stricken—and yellow highlighted passages—sections Judge Kaplan struck from the record—one can be forgiven for thinking that censorship is alive and well in America.

It is, and it's being carried out under the guise of a judicial process that Chevron is using to conceal its crimes in Ecuador and retaliate against those that have helped bring them to light.

“They are trying to destroy my life”: Chevron’s legal war on its harshest critic

Editor of the Earth Island Journal Jason Mark wrote a story that first appeared in the magazine, and has now been syndicated by Salon. In the article, Mark goes beyond the basic reporting on the back-and-forth of the Chevron v. Donziger trial to explore the broader implications of the oil giant's retaliatory efforts.

First he quotes Donziger's former counsel:
John Keker, a defense attorney who represented Donziger until the besieged lawyer could no longer pay his bills, describes Chevron’s efforts as “scorched-earth litigation.” Here’s how Keker explained Chevron’s legal tactics when he filed a motion to be dismissed from the case:
“Chevron is using its limitless resources to crush defendants and win this case through might rather than merit. There is no sign that Chevron wants a trial on the merits. Instead, it will continue its endless drumbeat of motions — for summary judgment, for attachment, to re-instate long-dismissed claims, for penetration of attorney client privilege, for contempt and case-ending sanctions, to compel discover already denied or deemed moot, etc., etc. — to have the case resolved in its favor without a trial. … Encouraged by this Court’s implacable hostility to Donziger, Chevron will file any motion, however meritless, in the hope the Court will use it to hurt Donziger. Dongizer does not have the resources to defend against Chevron’s motion strategy.”
Mark then turns to some legal scholars for their view on this unprecedented and extraordinary case:
Susan Bozorgi, a Miami-based criminal defense lawyer, told Newsweek that she worries about what it will mean if Chevron wins: “[RICO] was meant to be used against the mob. The danger about a case like this is that it could send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct.”

UC-Hastings law professor Roht-Arriaza said to me: “I’m not a RICO expert, but I don’t know of any case that involves the behavior of companies abroad, where the company has turned around and sued under RICO. Chevron has been sued before, but they haven’t done this, even when it looked like things weren’t going well for them.” She continued: “It’s interesting the number of levels on which Chevron is fighting back. They are not only doing this, they are also bringing all of these arbitration cases, basically trying to say that the Ecuadorian court shouldn’t have brought any judgment.”
Mark quotes a spokesperson from Chevron who says that Donziger and the Ecuadorean villagers whose rainforest lands have been ravaged by the company's pollution are merely "scapegoating" the oil giant. The article concludes:
Of course, scapegoating is in the eye of the beholder. For his part, Donziger feels he’s the one being hounded. “They are trying to destroy my life,” he told me. “It’s improper, it’s illegal, and it’s unethical. They have hired people to follow me. They sued me for $60 billion, and then they dropped that down to $100 million, and then they dropped that because they are scared of having a jury trial. And now they are using a US federal judge, who I think is biased in their favor, and who is denying my due process rights.”

Then Donziger said, “There is an intimidation factor. The entire idea behind the entire RICO case is not to fight wrongdoers. It’s a weapon to intimidate their critics.”

If he’s right — and Chevron has spent all of this money just to intimidate people and prevent future litigation — then it leads us to a sobering conclusion: Even if the judge rules in Donziger’s favor, Chevron still wins.
 Read the entire article here.

Wednesday, October 30, 2013

Donziger & Ecuadorians File Motion to Strike Testimony of Chevron's Well-Paid Witness

Today, the legal team for Steven Donziger and the Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion—filled with devastating detail—to strike the testimony of the oil giant's star witness.

That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment against Chevron issued by the Ecuadorian court by promising the presiding judge $500,000.

Well, I guess Chevron can rest its case. Silver bullet. Or, more like magic bullet.

One of the main problems with the story—besides the fact that it never happened—is that after weaving his tall tale, Guerra admitted that he had offered between ten and twenty bribes to judges during his career as a lawyer and after becoming a judge, accepted about the same number of bribes, sometimes for as small as $200, to "fix" cases.

But it gets worse, at least for the credibility of his fanciful testimony. From today's motion:

Guerra further understood from multiple conversations and lunch meetings with Chevron attorneys—where, as Guerra’s testimony revealed, they always fully heard out his offers and consulted with their principals before allegedly saying “no”—that as an out-of-work former judge with no role in the case, he simply didn’t have the “goods” Chevron wanted. Guerra had every incentive to manufacture those goods so that he could bargain hard with Chevron about the price of his testimony. And bargain he did, lying repeatedly to Chevron—i.e., that he was in possession of emails that would confirm Chevron’s ghostwriting allegations; that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had recently offered him $300,000 to cooperate—in order to improve his bargaining position.

Okay, so the guy is an admitted liar and criminal but you know, maybe he's telling the truth now. What incentive could he possibly have to make up a new story now? Back to the motion:

When, after a long career of paying and accepting bribes, Guerra apparently decided that he would place himself in the service of Chevron, the former judge was earning $500 per month and had no savings. In contrast, Chevron has committed to paying Guerra, for a period of at least two years, a “salary” of $10,000 per month—20 times more than he was earning in Ecuador. It is unclear what need Guerra has for such a generous salary, in light of the fact that Chevron also: (i) provides Guerra with a monthly $2,000 “housing allowance”; (ii) bought Guerra a car and is paying for his auto insurance; (iii) is paying for health insurance to cover Guerra, his wife, his son, his son’s wife, and his grandchildren; (iv) paid Guerra roughly $12,000 to purchase household items upon his move to the U.S.; (v) paid Guerra’s moving expenses, including five airline tickets, transportation of personal items, and a temporary hotel stay upon arriving in the U.S.; (vi) paid Guerra roughly $50,000 in exchange for “evidence,” including $10,000 for belatedly finding a single document that supposedly eluded Guerra upon prior searches because it was “stuck” to something else; and (vii) pays the legal fees of Guerra’s various attorneys, including the fees of the lawyers handling immigration issues for his various family members. Guerra’s relocation on Chevron’s dime also reunited him with his daughter and a second son, who live in the U.S. and who Guerra had not seen in several years.

In other words, Chevron is bribing a judge to say that Donziger bribed a judge.

And the package Chevron has put together for this judge is outrageous, and egregiously runs afoul of federal law and ethical rules of conduct.

The motion outlines how the payments violate the federal Anti-Gratuity Statute as well as the Rules of Professional Conduct of New York, where the trial is taking place. By all means, read the motion for a detailed explanation of the rules but here is the view of prominent legal scholar and law professor Erwin Chemerinsky in a sworn declaration for the Defendants:

“if a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses.” 

And the conclusion of the motion on the payments to Guerra?:

The bottom line is that Guerra is and apparently always has been desperate for money, and will stoop to extraordinary lows to get it—including fabricating a story for Chevron, weaving big lies with small truths in an effort to create the illusion of a verified account. Guerra’s recent testimony only serves to drive his unreliability home.

The motion is well worth reading in its entirety as it also highlights the admitted lies, the contradictions, and the suspect assertions in Guerra's testimony, as well as the total lack of anything approaching corroborating evidence for his explosive allegations.

During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in preparation for his two days in court. That should be enough time for even a novice actor to learn his lines, no matter how fanciful a story he’s telling.

And hey, if it means reuniting with his beloved family in the United States, where he’ll enjoy a lifestyle he could only dream of before, it’s time well spent. And then some.

And for Chevron?

Simple. Guerra’s testimony is Chevron’s ‘magic bullet’ to save its RICO case and help the company avoid paying the $19 billion judgment for its devastation of the Ecuadorian Amazon.

If it worked, it would be money well spent.  And with a biased federal judge presiding, it probably will work – until a real court, the Second Circuit Court of Appeals, reviews the matter down the road. 

Never mind that the money spent on bribing Guerra to fabricate his story could be used to clean up the company’s contamination in Ecuador. But for Chevron, living up to its legal and moral responsibilities overseas would set a terrible precedent. 

In the end, Guerra’s preposterous testimony, bought and paid for by Chevron, his court performance the culmination of months of preparation by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more layer of absurdity to the farce that the current proceedings represent. A single federal judge in New York can no more act as an appellate court for the entire Ecuadorian Judiciary than Alberto Guerra’s words can be taken as the truth. And Chevron can no more hide from the truth than the company’s legal machinations can conceal its contamination, and its liabilities, in Ecuador.

Monday, October 28, 2013

Letter to the Court: Donziger Expresses Fair Trial Concerns to Judge Kaplan

In an October 23rd letter to Judge Lewis A. Kaplan, Steven Donziger writes:
“I write to record objections to certain procedures being used that I believe are interfering with my ability to mount a defense and violating my fundamental right to a fair trial.”
Steven’s letter goes on to enumerate in detail issues in the proceedings currently underway, including prohibitions by the judge against using evidence of Chevron’s liability for contamination in Ecuador, and no ruling yet from the judge as to whether Steven will be allowed to testify in open court (as opposed to only by written declaration).

Read and/or download the letter here (PDF document).

Saturday, October 19, 2013

Corporate Rights or Human Rights?

Katie Redford at Earth Rights International posted a blog here,  writing eloquently on the privilege to "speak" and limit activism that corporations are enjoying, as the rights of human beings to hold those corporations accountable continues to wane.  The struggle of the Lago Agrio Plaintiffs and Steven Donziger is highlighted as an example of SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants seeking to avoid accountability.  Click here, or read on below...
Posted October 16, 2013

Every day, human rights defenders around the world risk their lives to stand up against injustice. Whether investigating government abuse in Syria or Russia, or exposing corporate abuse in Nigeria or Ecuador, brave individuals everywhere depend on fundamental rights of free speech to do their work.   The United States has always celebrated such rights as vital to our democracy—after all, there is a reason that the First Amendment came first.  Yet recent trends, bolstered by a series of federal and Supreme Court cases, have privileged the free speech rights of corporations while silencing the living, breathing human beings that need those rights most.

It’s certainly no news that today’s corporations enjoy unprecedented global power.  Likewise, the corporate lobby’s campaign to stifle human rights activism has been steadily increasing.  Since Citizens United, which extended First Amendment rights to corporations as “persons”, we’ve seen bold legal arguments against laws and regulations that would hold them accountable to fundamental human rights law.  This year, for example, the Supreme Court held in Kiobel v. Shell that Nigerian survivors of torture and crimes against humanity could not seek justice against Shell in U.S. Courts.  The “mere corporate presence” of Shell in the U.S. was not enough for the Court to allow the plaintiffs—lawful residents of the U.S.—to bring their case.  Courtroom doors that have been open to the world’s powerless for over 30 years are now closing thanks to a concerted effort by the most powerful.

Yesterday, the Supreme Court heard arguments in a case that could push this dangerous precedent even further.  Largely outside the radar of the human rights community, DaimlerChrysler AG v. Bauman arises out of the company’s alleged participation in targeting labor activists in Argentina’s Dirty War, a period of terror that involved the murder, torture and disappearances of thousands of activists and political dissidents.  The allegations are chilling: Mercedes-Benz Argentina identified workers within its plant as “subversives” to state security forces, knowing full well that, as a result, those workers would be abducted, tortured, murdered or “disappeared”.   Equally chilling is the prospect that the Supreme Court will enshrine corporate rights over human rights in law once again.   Like Shell in Kiobel, the question is whether the German company is legally present in the U.S. for purposes of jurisdiction.  Daimler says that it has a constitutional right to be treated separate from its subsidiaries.  Where that right exists in the constitution is up to anyone’s imagination.

Unfortunately, it’s not just the Supreme Court that’s privileging corporate rights over human rights.  The American Petroleum Institute (API) sued the Securities and Exchange Commission (SEC) earlier this year, arguing a First Amendment right to make secret payments to foreign governments.  The case concerned Section 1504 of the Dodd-Frank Act which would require oil, gas and mining companies to disclose the payments they make to foreign governments, making this information available to the people living in resource-rich countries for the first time.  Such transparency regulations prevents corruption and promotes human rights, not least access to vital information that citizens in resource-rich countries require to demand accountability from their own governments.  Yet the API argued that the First Amendment allows them to conceal such payments, and the SEC is now revising their rule.

Finally, we have seen the rise in SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants against the human rights attorneys and NGOs that have advocated against them.  Perhaps the most extreme, but certainly not the only, example of this has been the tactics that Chevron has employed this year against all advocates criticizing their human rights and environmental abuses in Ecuador.  Faced with an $18 billion judgment against it for environmental devastation in the Amazon, Chevron has relentlessly targeted the organizations, lawyers, journalists and activists who have campaigned or publicly spoken out about the company’s destructive operations in Ecuador.  In spite of sanctions and other judicial admonishments, Chevron’s lawyers have continued to SLAPP activists with harassing subpoenas and depositions, undoubtedly aimed at chilling the future First Amendment activity that makes their company look bad.  EarthRights has defended these organizations, like Amazon Watch, but in spite of successful defense, Chevron’s legal machine continues these abusive practices.

Sadly, these cases are not new or unique.  Human rights advocates have always faced an uphill battle, especially when taking on corporate abuse.  What is new is the way in which our highest courts are privileging corporations and their rights over those of actual human beings.  SLAPP suits and corporate tactics aimed at discouraging human rights advocates from speaking out and demanding justice are time-tested.  But the aggressiveness and vigor with which Chevron has been allowed to pursue such tactics is new, and other corporations are following suit.

We must ask ourselves this question:  How can we speak truth to power when those with power have more rights to speak?