Tuesday, March 22, 2011

U.S. Judge’s Opinion Relied Largely On “Chevron’s Facts” As He Refused To Accept Ecuadorian Plaintiffs’ Evidence

Last week we wrote about Judge Lewis Kaplan channeling Chevron lobbyist in his unprecedented decision to prevent Ecuadorian plaintiffs and their attorneys from enforcing a $9.5 billion judgment against Chevron.

A close review of that decision has found that Judge Kaplan relied almost completely on the oil giant’s arguments. Prior to hearing and ruling on the merits, the American judge strongly signaled he would rule against the Ecuadorians, who sued Chevron in the South American country for massive oil contamination in the Amazon rainforest. Here are some startling numbers:

Kaplan cited Chevron’s briefs, reports and declarations 162 times in his March 7th opinion. He cited the plaintiffs’ legal documents only 10 times.

Chevron may as well have written the opinion. Judge Kaplan adopted Chevron’s arguments as his own. At the same time, he refused to accept evidence from the plaintiffs; then accused us of not responding under oath to Chevron’s charges.

Even before the Ecuadorian court granted the damage award, Chevron had undertaken a legal assault in the U.S. courts to discredit Ecuador’s judiciary system, its government and the plaintiffs’ lawsuit. The oil company accused the plaintiffs of “ghostwriting” an expert report and an Ecuadorian judge of indicating how he would rule prior to the judgment.

What happened in Ecuador was in compliance with Ecuadorian law and rules. What is happening in Judge Kaplan’s courtroom is prejudicial.

Since the beginning of Chevron’s attack on the plaintiffs, Judge Kaplan has expressed disdain for the plaintiffs’ attorneys and Ecuador and its institutions. Even the news media noted he has “made no secret of his distaste” for one of the plaintiffs’ attorneys. Judge Kaplan also has made dismissive comments from the bench about Ecuador’s government and judiciary, sarcastically comparing Ecuador’s courts to the " High Court of London" (pages 9-13) and making fun of Ecuador's Air Force (pages 9-15).

Incredibly, Judge Kaplan also based on his opinion on an “expert” report submitted by Chevron and written by a political opponent of Ecuadorian President Rafael Correa. Kaplan included 45 citations to Vladimir Alvarez Grau, a newspaper columnist and member of the opposition party in Ecuador. Depending on Alvarez’s expert views on Ecuador’s government and judiciary is like asking Republican operative Karl Rover to rate the effectiveness of the Obama Administration.

The plaintiffs’ legal team and an attorney for one of the plaintiffs’ lawyers presented to Judge Kaplan two detailed declarations from attorney Sheldon Elsen and Keker & Van Nest partner Elliot Peters and an affidavit by Ecuadorian lawyer Juan Pablo Saenz, describing some of the rampant misconduct Chevron has committed at various points throughout the Ecuadorian trial and responding to the company’s charges. Judge Kaplan included one cite from the Peters declarations and did not cite at all from the Elsen declaration and the Saenz affidavit. Kaplan included nine cites from two of the plaintiffs’ expert reports on Ecuador’s judiciary.

Judge Kaplan did, however, cite 15 times from a declaration by Paul Dans, a lawyer for Chevron lawyer Rodrigo Perez Pallares who is not even participating in the proceeding and whose declaration was filed in a different case. Pallares has been indicted in Ecuador for fraudulent verification of a remediation of oil pits.

In addition to suggesting to Chevron from the bench that the company file racketeering charges against the plaintiffs, Kaplan also expressed his view that Chevron and Texaco are legitimately separate companies and, as a result, may not be held liable, even though Chevron didn’t emphasize the argument in its own briefing. And last week the Second Circuit Court of Appeals in a related lawsuit stated clearly that just because Chevron “dropped the name Texaco” does not mean Chevron is not liable for Texaco’s misconduct.