Monday, October 16, 2017

Chevron Lawyer Larry Lowenstein Continues to Mislead Canadian Courts About Company's Fraud in Ecuador

To help Chevron block enforcement of the Ecuador environment judgment in Canada, company lawyer and Osler partner Larry Lowenstein flat-out lied last week to a panel of three judges on the Ontario Court of Appeal in Toronto. It is the vulnerable indigenous communities in Ecuador who pay the price for Lowenstein's bad form in service of one of the world's worst corporate polluters.

Lowenstein made an interesting cameo for Chevron last Wednesday before the appeals panel in Toronto that heard argument over a $1 million costs order the oil major is trying to impose on the impoverished indigenous groups. Those indigenous groups in 2013 won a $9.5 billion environmental judgment against Chevron, as determined by three layers of courts in Ecuador in the venue where the company insisted the trial be held and where it had accepted jurisdiction.

Since then, Chevron has hired 60 law firms and used roughly 2,000 lawyers to evade paying the judgment. It also sued an American human rights lawyer for the Ecuadorians for $60 billion before dropping all money damages claims to avoid a jury. It is now suing the same lawyer (Steven Donziger) for $33 million in fees, trying to bankrupt him. (For background, see here.)

This is how Chevron rolls. Without lawyers willing to do its bidding, Chevron could never get away with such blatant misconduct.

It is preposterous to think a large oil company that generates $225 billion in annual revenue needs the "protection" of a $1 million costs order against impoverished indigenous groups. Chevron no doubt is spending more money on legal work to get the costs order than the amount sought in the order. This is clearly another Chevron tactic to deny its adversaries access to the justice system.

Chevron's use of the costs order against indigenous groups is a vital part of the company's global intimidation model. It is a brazen attempt to close the courthouse doors to communities trying to force Chevron to clean up the mess the company left on their ancestral lands. This is consistent with a threat the company made in 2009 promising the indigenous groups "a lifetime of litigation" if they continued to pursue their claims.

"We will fight this case until hell freezes over, and then we will fight it out on the ice," said Charles James, Chevron's former General Counsel.

As the latest front man for Chevron's impunity campaign, Lowenstein claimed to the appeals panel that the Ecuador judgment was based on an "egregious fraud" because that's what a pro-business U.S. judge, Lewis A. Kaplan, determined after a lopsided "racketeering" trial held in 2013. During that trial, the court refused to consider any evidence of Chevron's environmental contamination. And Kaplan held undisclosed investments in Chevron during the proceeding, called a "Dickensian farce" by noted U.S. trial lawyer John Keker.

(Here is a press release and a detailed 33-page report documenting Kaplan's blatant bias against the Ecuadorian villagers and his erroneous findings.)

In speaking before the appellate panel, Lowenstein ignored the overwhelming evidence against Chevron in the Ecuador proceeding. He ignored the false testimony used by his client in the RICO matter and obfuscated evidence of the company's fraud in Ecuador and the United States. His courtroom act was designed to dupe the Canadian judges into thinking Chevron was the victim of the people it poisoned, rather than the other way around.

Lowenstein also tried to leave the impression that the decision against Chevron in Ecuador can never be enforced because of the one batshit crazy ruling by Kaplan, the compromised U.S. trial judge who seemed to think he had the authority to overturn Ecuador's entire Supreme Court.

Consider what Lowenstein failed to disclose to the appellate panel about Chevron's role in creating a catastrophe in the rainforest so massive it is called the "Amazon Chernobyl" by locals:

**Chevron was found by three layers of courts in Ecuador to have dumped billions of gallons of oil waste into the rainforest over a two-decade period, decimating indigenous groups and causing numerous cancer deaths. The court decisions were based on 105 technical evidentiary reports. Here is a summary of the overwhelming evidence; a legal brief that explains the history of the company's dumping and cover-up; and a summary of the high cancer rates.

**Initially sued by indigenous villagers in New York in 1993, Chevron praised Ecuador's justice system thinking it could engineer a political dismissal of the case by shifting it to the South American nation. With the scientific evidence mounting in its preferred forum of Ecuador, Chevron sold its assets to evade paying the judgment. 

**Ultimately, Chevron was ordered to pay $9.5 billion in damages and costs. This amount is a pittance compared to the roughly $50 billion BP has paid for its much smaller Gulf of Mexico spill in 2010. 

**Chevron retaliated by suing the indigenous groups and their lawyers before Kaplan, who invited the company to file the action. Chevron then made a mockery of justice by dropping all damages claims on the eve of trial to avoid a jury. Chevron also bribed a witness with $2 million to claim that the judgment in Ecuador was "ghostwritten"  -- testimony that since has been proven false but was nonetheless adopted by Kaplan.

**The bribed Chevron witness, Alberto Guerra, later admitted under oath that he repeatedly lied before Kaplan. Separately, a forensic examination by the American expert J. Christopher Racich demonstrated that the Ecuador trial judge wrote the decision on his office computer, contradicting Guerra's false claim that it had been given to the trial judge on a flash drive.

**In total, 18 judges appellate judges in Ecuador and Canada have ruled in favor of the villagers and rejected Chevron's "fraud" claims. (The Second Circuit Court of Appeals refused to review Kaplan's erroneous findings, as did the U.S. Supreme Court.) Lowenstein also ignores that 17 prominent human rights groups and 19 international law scholars have sided with the indigenous groups against Chevron.

Because of its corrupt acts and disdain for the rule of law, Chevron now finds itself in serious trouble. It faces possible criminal and civil jeopardy for its cover-up in addition to its $12 billion environmental liability (rising $300 million per year because of interest) to the people of Ecuador. Company management also faces a shareholder revolt over its unethical behavior.

Another big Lowenstein whopper before the Toronto court came when he claimed that Donziger, one of the American lawyers for the villagers, "controls" monies that will be deposited in trust for a clean-up.The trust is actually controlled by the affected communities, not their lawyers. 

Lowenstein's little speech reminded us of the bit part played years ago by a professor from Notre Dame who also allowed himself to be used by Chevron for money. That professor, Douglas Cassell, was slapped down by Notre Dame's administration for hiding the fact he was shilling for the oil giant while trying to act like a disinterested scholar. For background, see here.

The personal reputation of Lowenstein, and by extension that of the Osler partnership, is in play. The American law firm Gibson Dunn suffered a huge setback recently after its own unethical work of behalf of Chevron in the United States was exposed. Osler obviously is Chevron's answer to Gibson Dunn in Canada -- a law firm with a willingness to cross the ethical line to "rescue" a client from a scandal of its own making. 

Lowenstein's partners at Osler naturally claim they run one of the leading business law firms in Canada. If misleading courts and shareholders is how Osler deploys its legal skill, then those partners might need to rethink their business model. They also might disclose how much the firm charges Chevron for this tawdry service. 

Thursday, October 12, 2017

Us and Them: Affected Peoples vs. Chevron in Canada

Reposted from Eye on the Amazon

The latest chapter in the decades-long struggle seeking justice for Chevron's crimes in Ecuador is taking place in Canada right now. Unfortunately, as the years grind by the issues being debated get further and further away from the substantive problems of environmental contamination and human suffering, and the process becomes stuck in a legal quicksand of Chevron's design. The hearings before the Ontario Court of Appeals this week were a perfect example of that.

Amazon Watch continues to bear witness to this ongoing perversion of justice, both because we ourselves are a target of Chevron's attacks, and also because the cynical strategy the oil giant employs is a real and present danger to corporate accountability work everywhere. For that reason we attended the hearings in Toronto this week along with artist and activist Roger Waters, founding member of Pink Floyd. Waters spoke to the media to express his outrage at Chevron's endless legal maneuvers to escape justice for its crimes.

"It's a fundamental question of whether corporations like Chevron ... should be allowed to use their financial muscle to destroy people with an absolutely vital claim to reparations for damages that were caused to them over many years," Waters said before the hearing. "The way Chevron has behaved here is against everything that any of us might believe society ought to be like."

This week was supposed to see the beginning of the appeal of the previous decision in this case - which was mixed (upholding corporate separateness but granting the Ecuadorians the right to a trial to challenge Chevron's completely unfounded allegations of fraud). Instead the Ecuadorians were forced to confront Chevron's demand that the communities come up with almost $1 million as a security fee for the appeal to proceed. This is yet another legal delay tactic from Chevron in their never ending hope that the people they harmed will either give up, run out of funds, or simply die off before they can force Chevron to pay up.

In 2014, the Supreme Court of Canada ruled unanimously that the Ecuadorians could seek enforcement of the $9.5 billion verdict in Canada. Chevron's Canadian subsidiary, Chevron-Canada, holds approximately $15 billion in assets and since Chevron famously fled Ecuador with its assets to avoid paying (and invented an elaborate lie about fraud and bribery so they could countersue in the U.S. to make enforcement there very difficult), the Ecuadorians have been forced to pursue Chevron to Canada like a fugitive deadbeat.

Try to wrap your mind around this: the third largest corporation in the U.S., after spending billions to drag out a cut-and-dry case of deliberate environmental contamination for decades, is now demanding the the Ecuadorian communities pay $1 million for the right to an appeal which could finally permit seizure of their assets to pay for a clean-up.

To quote The Dark Side of the Moon: "And if your head explodes with dark forebodings, too..." yeah, that's an appropriate reaction at this point.

The lead lawyer for the Ecuadorians, Alan Lenczner, pointed out quite clearly that this was nothing more than a stunt by Chevron, stating that, "Chevron is one of largest companies in the world with over 1,500 subsidiaries, $225 billion in annual revenue, which is $1 billion a day for each working day, with a profit of $25 billion annually, working out to $1 million per DAY is hardly in need of protection!" In fact, just counting Chevron and Chevron-Canada's legal team in the room this week, there were at least twenty lawyers and their staff. The cost for their travel and billing right there is more than the security fund itself! That alone proves this is nothing but a punitive legal subterfuge, to our eyes.

But the hearing this week also had a new element which has previously played only a minor role in the several years this case has dragged on in Canada. The introduction of Peter Grant, a renowned Canadian aboriginal rights lawyer who recently helped to win a major case before the country's Supreme Court, had a profound impact on the proceedings. Peter made it clear to the appellate panel of Justices Hoy, Cronk, and Hourigan that this entire exercise was fundamentally an issue of access to justice for indigenous peoples. Grant, who had recently visited the Ecuadorian Amazon to witness the contamination along with Canadian indigenous leaders Phil Fontaine and Ed John and Greenpeace co-founder Rex Weyler, spoke with firsthand experience of what effect this order would have on the people still suffering today. This has even more resonance considering that Canada recently signed the UN Declaration on the Rights of Indigenous Peoples and there is much more respect in Canadian political discourse for indigenous peoples.

And that's the genuine issue that not only the Canadian appeals court but Chevron and its lawyers should be made to face every single day. People are still dying from the deliberate contamination caused by Chevron in the Amazon. This is not an historic case about reparation for past harms, but a very real and urgent need for clean-up today. Every day Chevron evades paying for that clean-up, more people in the region risk sickness and death. It must end here. As Roger Waters said, "if Chevron can go on fighting this for another twenty years, and they will if they can, what does that say about us as a human race, that we would allow such a thing? It says that we've lost our grip on the reins of civilization."