Tuesday, May 7, 2013

Attorney John Keker’s Blistering Critique of Judge Lewis A. Kaplan

In case you missed it, prominent California Attorney John Keker has unleashed a fusillade of criticism at New York Judge Lewis A. Kaplan for trying to help Chevron conduct a “show trial” as part of its campaign to evade payment of a $19 billion judgment for polluting the rainforest in the South American nation.

An Ecuador court found Chevron guilty in 2011 of deliberately dumping billions of gallons of toxic waste into the rainforest from 1964 to 1992, when it operated under the Texaco brand.  Evidence demonstrates Chevron’s dumping decimated indigenous groups and caused an outbreak of cancer and other oil-related diseases which persist to this day. A summary of the evidence can be viewed here; a video about the case can be viewed here.

Keker, who represents a New York attorney who is the main target of Chevron’s retaliation campaign, already told a federal appellate court that he felt “like a goat tethered to a stake” in Kaplan’s courtroom.  After hearing that comment, the appellate court unanimously overturned Kaplan’s illegal 2011 injunction that purported to block the affected rainforest communities from enforcing their winning judgment against Chevron assets in other countries.

To retaliate against the indigenous communities who won the Ecuador judgment – handed down in the Ecuador court where Chevron fought to have the trial held – the oil giant in 2011 sued New York attorney Steven Donziger and some of his Ecuadorians colleagues before Judge Kaplan.

Keker represents Donziger in the case, but is now seeking to withdraw due to Kaplan’s “implacable hostility” toward Donziger and the Ecuadorians. Donziger also has been unable to keep up with Keker’s fees.

Some highlights from Keker’s motion:
  • Kaker asserted that Judge Kaplan has let Chevron’s New York case “degenerate into a Dickensian farce” where “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.”
  • Another excerpt:  “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”
  • Judge Kaplan forced Donziger to sit for an unheard-of 16 days of deposition testimony and allowed Chevron to serve him 1,228 requests for admissions prior to trial.  He recently ordered Donziger to sit for a further three days of depositions, when the federal rules normally allow only one day.
  • Judge Kaplan forced Keker to spend “hundreds of thousands of dollars” of attorney time to respond to Chevron’s Motion for Summary Judgment which was filed before discovery in the case was taken -- a highly unusual step designed to exhaust the resources of the Ecuadorians.  Kaplan then denied the motion, but said Chevron could renew it after the close of discovery, which is what Keker had “begged” the court to do at the outset.

For further evidence of Kaplan’s bias, read these extraordinary petitions to get Kaplan off the case filed by the Patton Boggs law firm. They can be seen here and here. The latter petition is now pending before the Second Circuit Court of Appeals, so stay tuned.

For more information about the Keker motion and a similar one filed by the Smyser Kaplan & Veselka law firm in Houston, see this press release from the Ecuadorian communities and this release put out by Donziger’s law firm.

It is well-known that Judge Kaplan takes a dim view of the intelligence of the Ecuadorian people.  The good judge also has mocked Ecuador’s judiciary from the bench, causing a firestorm of international criticism.

The Ecuadorian citizen Pablo Fajardo, the lead lawyer on the case on behalf of the rainforest communities and the winner of the Goldman Environmental Award, has called Judge Kaplan “arrogant, racist, and xenophobic”. See this press release for more detail about Kaplan’s insulting comments directed to Ecuador from the bench.

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