But long expecting an adverse ruling from a judge who his former lawyer John Keker says has shown “implacable hostility” towards him, Donziger didn't wait for a ruling in the case before securing appellate counsel.
And that appellate team, lead by a lawyer that the Wall Street Journal calls a "heavy" came out firing, filing a motion asking for the RICO case to be dismissed altogether.
As noted in a press release issued yesterday by Donziger:
The move to dismiss the RICO case – which comes after the close of evidence but before decision – is based largely on Chevron's surprise admission in its final post-trial brief that it cannot block foreign enforcement proceedings that rainforest villagers are using to collect on their $9.5 billion environmental judgment.Deepak Gupta is, of course, the "heavy" referred to by the WSJ. He is a principal at Gupta Beck, a firm he founded in 2012, and formerly held a high-level post at the Consumer Financial Protection Bureau. Before working at the CFPB, he worked as a litigator with Public Citizen for seven years, where he argued some high-profile cases before the Supreme Court.
“In the end, Chevron all but admits that is it not asking this Court to resolve any concrete case or controversy,” said the motion, filed by Deepak Gupta of Gupta Beck in Washington, D.C. “This unseemly spectacle of a case must come to an end.”
The press release continues:
“Motions to dismiss usually happen at the beginning of a trial, not after three years of litigation,” said Gupta. “But when Chevron dropped all of its damages claims to avoid a jury trial, it painted itself into a corner and deprived the court of jurisdiction.”The motion itself was heralded by respected lawyer and legal analyst Ted Folkman. In a post on his Letters Blogatory site, headlined Lago Agrio: Deepak Gupta In The House, he writes:
“After analyzing the case for the last several weeks, we have come to the conclusion that Chevron has not identified a single injury that would give it standing,” said Gupta. “That’s because none exists.”
If you spend your days reading and writing memoranda of law, you know a good one when you see it. And so when I read Steven Donziger’s latest brief in the RICO case last week, my first thought was that his lawyers had finally found their groove. But then I looked at the cover and saw that Donziger had actually gotten a new legal team! I assume (but I do not know) that the new member of the team, Deepak Gupta of Gupta/Beck, had a big hand in the new brief that’s both legally compelling and a pleasure to read.Back to yesterday's press release:
What Chevron really wants from Judge Kaplan is an advisory opinion that it can use for public relations purposes in the U.S. and around the world, a judicial function prohibited by the Constitution, said Gupta. “Courts exist to decide actual cases,” said Gupta. “They are not debating societies. Nor do they exist to write advisory opinions for foreign courts.”Read the rest of the press release here, and the motion to dismiss here.
Gupta said Chevron faces two other intractable problems – first, that the injunction it seeks from Judge Kaplan to block the Ecuador judgment is not authorized by the RICO statute; and, second, that the injunction is functionally equivalent to one declared illegal by the Second Circuit Court of Appeals in an earlier phase of the case.
To get around the latter problem, Chevron is now claiming that its proposed injunction would only stop the Ecuadorians from “collecting” on their judgment, but would not stop the enforcement actions themselves.
“Chevron is now seeking an anti-collection injunction rather than an anti-enforcement injunction,” said Gupta.
“Although Chevron never has had standing to bring this lawsuit, whatever argument it might have had for standing (before dropping its damages claim) is now gone – and, with it, so too is this Court’s authority over the dispute,” said the motion.