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
by Katie Redford

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?

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Chevron Withdraws Key Element of RICO Charge Against Donziger

Check out the press release issued today by the legal team representing Steven Donziger and the Ecuadorian Plaintiffs—now, of course, Defendants in Chevron's retaliatory RICO case.

See below for important points on the first week of trial, and stay tuned for next week...


FOR IMMEDIATE RELEASE
October 18, 2013

Contact: Chris Gowen, 610-513-0539, press@gowengroup.com

Chevron Withdraws Key Element of RICO Charge Against Donziger

NEW YORK, /CSRwire/ - With the first week of trial in Chevron’s RICO case over, it is becoming increasingly clear that the oil giant is facing significant hurdles as it attempts to salvage a verdict that will allow it to block international efforts to enforce the $19 billion Ecuador judgment.
 
After the first four witnesses, several issues have come into sharp focus.  First, Chevron is willing to give up major portions of its RICO claims to avoid compelling evidence of its environmental pollution and corrupt activities in Ecuador from coming out in court.

At the same time, Judge Lewis A. Kaplan is doing everything he can to assist the oil giant’s case.  Kaplan has blocked most lines of questioning about environmental contamination, blocked evidence of Chevron’s surveillance of Donziger, granted Chevron a trial preparation room five times the size of that used by Donziger and Ecuadorian defendants Hugo Camacho and Javier Piaguaje, and most notably, has twice taken over the questioning of Chevron witnesses.

“I don’t think there’s a lawyer in the world who would guess that this is a RICO case had they sat through the first week of trial,” said Christopher Gowen, the spokesman for Donziger.  “Chevron clearly wants to retry the Ecuador case that it lost in its preferred court”.

Gowen said Chevron’s case rests largely on a veritable parade of witnesses “who seem to personally dislike Steven Donziger” but have little information relevant to the legal claims in the case.   “Chevron will continue to use this proceeding to try to destroy Donziger’s reputation by distorting facts about him, which seems to be central to their strategy,” he added.

The most stunning development occurred the first day when Chevron dropped a key predicate RICO act alleging that Donziger and his colleagues pressed for prosecutors in Ecuador to file “bogus” criminal charges against Ricardo Reis Veiga, a top Chevron lawyer.  Just as lawyers were about to confront Reis Veiga with evidence that the charges were based on scientific proof that he designed and supervised a fraudulent remediation, Chevron agreed to drop that issue.

That move “completely validates everything Steven Donziger has been saying about this issue for years.” said Gowen.  “It was manufactured by Chevron to put pressure on Donziger and harm his reputation, and it was false.”

“We were prepared to prove that Veiga orchestrated a major fraud in Ecuador to try to get Chevron out of its huge liability, and that the criminal charges against him had a valid basis,” Gowen continued.  “You may draw your own conclusions about why Chevron dropped this claim.”

Another of Chevron’s key witnesses, a former technical consultant for the rainforest communities named David Russell’s written testimony, authored by Chevron’s lawyers stated that Donziger pressured him to put out an inflated damages estimate in 2003 to pressure the company into a settlement.  Curiously, Mr. Russell had a much different tone during a 2003 interview with the Wall Street Journal where, in his own words, he called the Ecuadorian contamination “larger than the Chernobyl disaster”.

Under cross-examination on the stand, Russell testified that he spent days putting together the assessment based on assumptions then available from limited data, and did so with no interference from Donziger.

Whether the thousands of dollars Mr. Russell has made from Chevron for his “testimony prep” influenced his testimony is rather obvious.  Russell even admitted that Chevron lawyers at Gibson Dunn & Crutcher wrote his testimony for him in the first person.

Chevron scientist Sara McMillen was caught having to admit that the company’s technical experts were told to only look for “clean” soil samples during the judicial inspections.  Donziger has long accused Chevron of engaging in junk science to defraud Ecuador’s court.  (For a copy of his own claims against Chevron that Judge Kaplan would not let go forward, see here).

 McMillen also conceded that Chevron called its own paid experts “independent” – the exact same term used by Donziger and his colleagues that Chevron claims was inappropriate.

"Chevron's witnesses have affirmed what the victims of Chevron's contamination have known all too well for decades -- that a huge area where Chevron operated is horrifically polluted," said Han Shan, spokesperson for the Ecuadorians named in Chevron's RICO suit. "Chevron's attempts to run from this basic truth adds insult to injury for thousands of people who continue to suffer the impacts of the company's reckless conduct."

Chevron’s RICO has three main problems:

First, the main activity in the case took place outside the U.S. in Ecuador, while the statute only applies to acts in the country.  Second, now that Chevron has dropped money damages claims to avoid a jury, there is no equitable relief remedy available (such as an injunction blocking enforcement) Third, and most notably, Mr. Donziger did not commit a “predicate act” as clearly required by the RICO Statute, according to Gowen.

“Chevron figured out how to avoid a jury because the company knew full well New Yorkers would have seen through its charade,” he added.

###

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RICO Bombshell Further Erodes Credibility of Key Chevron Witness

On the very second morning of the trial in Chevron's retaliatory RICO suit, one of the oil giant's star witnesses dropped a bombshell.

And the star witness—Chevron's own Ricardo Reis Vega, the company's vice president who oversaw its legal defense in the Ecuador case—dropped that bombshell on another of Chevron's star witnesses.
 

With the courtroom packed with people who mostly already knew about the incident, the major revelation drew little response except some frantic scribbling in notebooks and whispering in the dark suited, shoulder to shoulder Chevron seating section.

For those of you who haven't been closely following the tortuous grind of this case, Reis Veiga's admission is substantial and eviscerates the credibility of the witness Chevron is relying on to support its most explosive—and ridiculous—allegations in the case.

Reis Vega was asked if he had personal knowledge that in 2009, the disgraced former judge in the case in Ecuador, Alberto Guerra, approached Chevron, promising to "fix the case."

Reis Vega replied, simply, "Yes, I do."

Chevron is promising that Judge Guerra—who the company admits offered to "fix the case", will be its star witness in Chevron's trial. He is expected to say that the Ecuadorian Plaintiffs' legal team offered to bribe judges, an outrageous claim they vigorously deny.   Judge Guerra who has in fact been paid more than $325,000 by Chevron, in some cases by lawyers toting suitcases in cash.  Who is bribing whom?

While this all sounds hyperbolic; unfortunately it is not, and will be corroborated soon enough in court.

Read this Motion for Terminating Sanctions filed last month for more information on Guerra's total lack of credibility.

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Eye on the Amazon: Retaliation Trial Opens Against Victims of Chevron Contamination in Ecuador

Reposted from Eye on the Amazon



Today in New York Ecuadorian villagers from the Amazon rainforest region ravaged by Chevron's oil contamination were joined by supporters for a rally in Foley Square across from the courthouse where a trial opened in the California-based oil giant's retaliatory RICO lawsuit against the Ecuadorians and their U.S.-based legal advocates.

The Ecuadorians are representing 30,000 plaintiffs who won a landmark judgment against Chevron in an Ecuadorian court in 2011 in which the company was ordered to pay more than $18 billion for cleanup of widespread contamination, as well as compensatory and punitive damages. The case holding Chevron accountable for toxic dumping by its predecessor company, Texaco, has been upheld by appellate courts in Ecuador.

After nearly 20 years since the case was filed in 1993, Chevron still refuses to pay for a cleanup and is waging a scorched earth legal, PR, and lobbying campaign to crush its victims and their advocates and supporters. The oil giant stripped its assets from the country, forcing the Ecuadorians to pursue enforcement of the judgment in countries where the company maintains assets.

While Secoya indigenous community leader Javier Piaguaje continues to contest that the New York court can assert Personal Jurisdiction over him, he has traveled to New York to represent the tens of thousands of Ecuadorian plaintiffs who couldn't be there and defend them against Chevron's insulting allegations. He had this to say outside the courthouse in Foley Square today:

Ladies and gentlemen,


30,000 people were affected by Chevron's contamination and each day this number increases. Almost 30 years of criminal operation by the Chevron-Texaco oil company in Ecuador; more than 1,500 square miles of contaminated Amazonian rainforest; rising cases of cancer that almost always end in death; the suffering of our women for the great number of miscarriages; the devastation of the ecosystems and the destruction of thousands of species of plants and animals.


When Texaco arrived, we were expelled from our ancestral lands and two indigenous peoples went extinct. What the oil company brought to the Ecuadorian Amazonian was violence, death and destruction; meanwhile, the company got all the riches that the land offers at the cost of our lives, our health, and our home.


For this reason we continue our efforts to hold Chevron accountable, so that the company pays for all of the harm that it caused. We are here in New York now, where Chevron persecutes us and accuses us of being criminals and is supported by a judge who doesn't know our reality and suffering and hopes. Who are the real villains in this story?


We are outside this courthouse to tell the history that Judge Lewis Kaplan has refused to hear. Our misery is real and it will not cease to exist by a judicial process in New York, where Chevron hopes to avoid its responsibility with the collaboration of a judge that isn't even willing to validate the harm that we've had to endure. We come to denounce the abuse that is being committed in affected communities but also to tell them that we have already fought for 20 years and this RICO lawsuit will not stop us in our quest for justice.


The oil company has declared that it will fight us "until hell freezes over." Obviously our economic conditions are not the same; they can buy justice, we cannot. Because of this we must unite to fight against a giant that understands money, but not values like solidarity, truth, fellowship, and above all, justice.


Our fight is to keep the Amazon, the lungs of the planet, alive.


Our fight should interest the whole world.


We unite to make the world a place that is worth living in. The Amazon was one of those places. With your help, it can be again.


Thank you.

Forty-seven "named plaintiffs" – all of them indigenous rainforest residents and rural villagers – have been named in Chevron's lawsuit, which alleges that the entire case is a conspiracy to extort the company. Two of the Ecuadorian villagers, while rejecting the New York court's jurisdiction over them, have nonetheless appeared in the case in order to fight the allegations. Fearing a public backlash for suing victims of its pollution, Chevron has focused its smear campaign on New York-based human rights attorney Steven Donziger, who has advised the Ecuadorians in their efforts since first visiting the contaminated region in 1993.

The Ecuadorians and their supporters have called for an end to Chevron's retaliatory lawsuit, and are calling this latest effort a "rigged show trial" before a federal judge, Lewis A. Kaplan, who has displayed outright hostility to the Ecuadorians' legal efforts to demand a cleanup. Judge Kaplan has also made repeated disparaging on-the-record comments about Ecuador's judicial system.

Texaco operated in Ecuador until 1992, and Chevron absorbed the company in 2001, assuming all of its predecessor's assets and liabilities. Chevron has admitted to dumping nearly 16 billion gallons of toxic wastewater – the byproduct of oil drilling and pumping – into rivers and streams relied upon by thousands of people for drinking, bathing, and fishing. The company also abandoned hundreds of unlined, open waste pits filled with crude, sludge, and oil drilling chemicals throughout the inhabited rainforest region. In other countries at the same time as it was operating with no environmental controls in Ecuador, the company re-injected wastewater and used other easily-deployed technologies to deal with the toxic byproducts of its activities.

Multiple independent health studies have shown an epidemic of oil-related birth defects, cancers, and other illness. It is estimated that the contamination has directly led to at least 1,400 deaths.

More Information:

For more on the campaign to hold Chevron accountable for its abuses in Ecuador: ChevronToxico.com

For more on the impending trial in Chevron's retaliatory lawsuit: StevenDonziger.com

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Chevron’s Retaliatory Show Trial Opens in New York

Today in a New York Courtroom,  Chevron’s campaign to evade accountability for its environmental and human rights abuses in Ecuador officially enters a new, egregious, ridiculous stage.

This morning, in Judge Lewis Kaplan’s courtroom on the 21st floor of the Daniel Patrick Moynihan U.S. Courthouse in New York, Chevron’s team of lawyers assembled on one side, while long-time advocate for the Ecuadorian rainforest communities, Steven Donziger and his team assembled on the other. Some journalists and supporters of the fight to hold Chevron accountable filled out the courtroom and fidgeted, while waiting for whatever would come next.Missing from the courtroom as Judge Kaplan called the first day’s hearing to order was Javier Piaguaje, Secoya indigenous leader from the community of San Pablo, deep in the Ecuadorian Amazon. He has consistently rejected the New York court’s jurisdiction but traveled here to represent the thousands of Ecuadorian victims of Chevron’s pollution who are being victimized even now by Chevron’s ongoing scorched earth campaign to crush their righteous fight for justice.

Earlier in the morning, Javier stood beneath the Flaming Sword of Justice Monument to briefly address a large crowd of people gathered in Foley Square; members of the Ecuadorean community in New York, and supporters of human rights and the environment who came out in solidarity.
High above Foley Square, Judge Kaplan began the proceedings without a single representative from the affected Ecuadorian communities. A few minutes later, finally, Javier joined Steven in the courtroom, along with their lawyers. Javier had been delayed by long lines at the entrance check-point; security was tight for the high-profile arraignment of a terror suspect.

But as the proceedings continued, the scene grew only more bizarre.

In its opening statement, Chevron failed to mention a single element of law against the Ecuadorian defendants. It seems clear that the court has no choice but to dismiss the entire matter against the Ecuadorians.

In fact, Chevron’s opening statement displays an absolute obsession with Donziger, but an utter lack of legal basis to proceed in the show trial now underway. Chevron even failed in its opening statement to suggest any sort of relief they may be seeking from the court, suggesting they don’t have a legal basis for relief.

At the outset, besides the overarching fact that this whole RICO case is merely a weapon of mass distraction designed to explode the landmark verdict won by the Ecuadorian plaintiffs after one of the most litigated environmental cases in history, Chevron’s case has a couple obvious major problems from a legal standpoint: the company can’t meet the elements of law, and there’s no relief available anyway.

And all of that became clear within the first hour or two. Stay tuned…

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Setting the Record Straight: Steven on HuffPost Live

This is an excellent segment. Watch Steven Donziger interviewed on HuffPost Live:  
 

Steven sets the record straight when the ill-informed host throws out some baloney about film outtakes showing Steven talking about bribes—an allegation Chevron hasn't even made despite its myriad other ridiculous accusations. No such outtakes exist because it never happened, on film or otherwise.

Chevron has thrown around so many wild accusations that people can't even keep them straight, which is probably the point.

And of course, Chevron knows a thing or two about bribes.

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Judge Kaplan Denies Jury Trial for Donziger and Ecuadoreans

Today, the New York Law Journal ran an article on its front page about the upcoming trial in Chevron's retaliatory RICO lawsuit against the victims of Chevron's abuses in the Ecuadorean Amazon, and their long-time U.S. attorney, Steven Donziger. The piece begins:

The pitched battle between Chevron Corporation and a lawyer and Ecuadorians who won a multi-billion-dollar environmental judgment against the oil company in Ecuador is set for trial on Oct. 15, before Southern District Judge Lewis Kaplan.

Reporter Mark Hamblett opens with the competing narratives—Chevron on one side, human rights attorney Donziger and the Ecuadoreans on the other—in this case:

Kaplan Monday denied the request of attorney Steven Donziger and two of his Ecuadorian clients for a jury trial in the case, where Chevron is alleging Donziger ran a racketeering conspiracy to win the so-called Lago Agrio litigation in Ecuador by fraud, and Donziger is accusing Chevron of scorched-earth tactics to avoid taking financial responsibility for environmental damage left behind by a predecessor oil company.

As the trial evidence mounted in Ecuador over Chevron's devastation of a sprawling swath of inhabited Amazon rainforest, it became increasingly clear that Chevron would likely be found liable. On that, the company was right, and in February 2011, the oil giant was ordered to pay nearly $19 billion in compensatory and punitive damages.

But by then Chevron had launched its retaliatory campaign against Donziger and the Ecuadoreans. In 2009, with an adverse judgment from the Ecuadorian court looming, Chevron press operative Chris Gidez wrote in an internal company memo that “our L-T [long-term] strategy is to demonize Donziger.”

Today's NY Law Journal article continues:

After Chevron filed its lawsuit, Donziger said, "It then used 'the explosive' 'thermonuclear' impact of the allegations—the 'terrorizing' effect of civil RICO 'as another court has described it'—to launch a global smear campaign designed to destroy my reputation, chill my free speech rights, and drive me away from representing the Ecuadorian communities who are my clients. This campaign was promoted, encouraged and amplified by the very court that Chevron now seeks to preside over a bench trial."

In addition to "fundamental fairness" requiring a jury trial, Donziger said, "Chevron has accused me of being a 'criminal' in open court," and "it would amount to a travesty of justice to deny me and my clients a jury trial in what is essentially a private prosecution funded by corporate largesse."

Legal Newsline covered the development today as well, quoting Donziger spokesman Chris Gowen, who called Kaplan's decision “a clear abuse of power” and said that it shows Chevron doesn’t believe in its own case:

“This critical decision made only days before trial virtually guarantees Chevron its desired outcome from a judge who already has decided all key issues in the case before evidence has been presented,” Gowen said in a statement.

While Judge Kaplan—who famed trial attorney John Keker charges with allowing Chevron’s RICO case to degenerate into a “Dickensian farce”—remains intent on being the sole decider, Donziger and the Ecuadoreans are preparing for trial.

As we file this post, there is one brief comment on the Legal News Line article from a reader named Peter. We don't know who Peter is but we think he nails it:

The fact that Donziger is prepared to risk a huge financial judgement in order to be tried by jury clearly illustrates which side is more confident of its merits.

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Chevron Continues Abusive Efforts to Rig Trial in Retaliatatory RICO Case vs. Donziger and Ecuadorian Villagers

Last week, after bringing in heavy-hitting trial lawyer Ted Olson to argue its case, Chevron prevailed in its effort to keep its favorite judge overseeing the upcoming trial over the oil giant's retaliatory lawsuit against lawyer Steven Donziger and his clients from the Ecuadorian Amazon. Days later, on the eve of the trial, Chevron dropped its damages claims against Donziger.

Why would they do that?

Well, once Chevron secured Judge Lewis Kaplan—who has displayed outright bias against the Ecuadorians and their legal team who sued Chevron over its rainforest Chernobyl—the company wanted to make sure it was Kaplan, and Kaplan alone, deciding the case.

As The Wall Street Journal—a pro-Big Business organ if there ever was one—put it:

"Trying the case before a jury would be riskier for the company, experts said, in part because jurors might not be sympathetic to its argument that it has been victimized by the lawyers for Ecuadorian villagers."

In other words, a jury would likely see right through Chevron's cynical efforts to play the victim after being found guilty of massive oil contamination—causing a horrific epidemic of oil-related sickness and death amongst thousands of poor rural Ecuadorians—in one of the most-litigated environmental cases in history.

And so, the company argued, without damages claims, Donziger loses his right to a jury trial.

But, according to a press release today, Donziger and the other RICO defendants disagree, and will pressing their view before the court tomorrow:

Donziger and his clients are due to file a motion tomorrow explaining why the law still requires a jury rather than allowing a bench trial before Judge Lewis A. Kaplan, who has a documented history of bias in favor of Chevron.

But, in addition to making sure the oil giant's dear friend in the federal court is the sole "decider," the company is going to alarming lengths to rig the trial:

Chevron is now trying to bar any and all evidence of environmental contamination in Ecuador from its RICO case as part of a strategy to deny rainforest villagers and their New York attorney Steven Donziger a fair trial, according to recent court filings.

The press release continues:

Chevron has asked Judge Kaplan to bar Donziger and the Ecuadorians from using any of the overwhelming scientific evidence that proved the company’s guilt when it was found liable by the Ecuador court for $19 billion in damages.
…
Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence related to “environmental and human conditions” in the affected area of Ecuador’s rainforest and to exclude the use of any scientific studies related to the contamination.  The Ecuador court relied on such studies as well as tens of thousands of chemical sampling results to find Chevron liable in the case.

Christopher Gowen, a law professor and spokesman for Donziger and the Ecuadorians called Chevron’s attempts to restrict evidence “stunning in breadth and scope,” saying:

"Chevron obviously is so afraid of its own wrongdoing that it wants to have an environmental trial without talking about the environment. That’s what corporate polluters do when they get caught with their pants down.”

Chevron's shocking requests to Judge Kaplan are laid out in its Summary Notice of Motions in limine. Here is an excerpt:

    Chevron requests that this Court enter an order: 

• precluding Defendants from offering at trial evidence, arguments, or questioning in support of the proposition that the findings of the Cabrera report, the Ecuadorian judgment, or Defendants’ allegations in the Ecuadorian proceeding were accurate or supported by evidence and sound scientific analysis, including but not limited to a prohibition on the submission of evidence, arguments, or questioning regarding the following topics, except insofar as the evidence is otherwise relevant:
  
• alleged environmental and human conditions in the Oriente region of Ecuador, including scientific or other studies, testing or sampling results, video or still images, or personal testimonies; and
• the procedures employed in the TexPet Remediation, the efficacy of those procedures, or their compliance with agreements and with Ecuadorian law.

Today's press release outlines more:

In various court filings, Chevron also has asked Judge Kaplan to bar Donziger and the Ecuadorians from presenting evidence of:

**Chevron’s repeated contacts with high-level government officials in Ecuador to try to illegally quash the case;

**Chevron’s many private contacts with Ecuadorian judges and independent court experts;

**Chevron internal videos showing company technical experts in Ecuador laughing at the pollution while discussing ways to hide it from the court;

**Personal testimony from individuals about pollution and health impacts that was relied on by the Ecuador court;

**Chevron’s sting operation against an Ecuador judge where the company tried to orchestrate a fake bribery scandal to derail the trial;

**Chevron’s creation of dummy companies to hide its control of a supposedly independent laboratory that processed soil samples for the court;

**Evidence that the legal team for the rainforest communities received death threats and were harassed during the trial;

**Evidence of Chevron’s surveillance of Donziger, Ecuadorian lawyer Pablo Fajardo, and others;

**Evidence of Chevron’s lobbying contacts in the U.S. designed to pressure Ecuador’s government to quash the case.

Pablo Fajardo, lead lawyer for the rainforest communities in Ecuador, commented:

“We thoroughly reject Chevron’s blatant attempt to rig the trial before Judge Kaplan by barring the decades of accumulated evidence of its environmental crimes, fraud, and misconduct in Ecuador."

As always, for an overview of Chevron's crimes in Ecuador, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

Become a follower of  The Chevron Pit.
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Chevron General Counsel Distorts Arbitration Ruling to Hide $19 Billion Ecuador Liability

 
Reporters Get Sucked In By Chevron’s Spin

R. Hewitt Pate, Chevron’s General Counsel, faces a series of cascading problems relating to the company’s $19 billion Ecuador liability.   That might explain his irrational exuberance last week over an inconsequential ruling in favor of Chevron issued by a private investor arbitration panel that bizarrely purports to exercise authority over Ecuador’s entire public judicial system.

It is indisputable that Pate made misleading comments in a press release about the panel’s decision when he said it means “the game is up” and the ongoing 10-year-old litigation in Ecuador has essentially ended.  Reporters such as Fortune’s Roger Parloff and Businessweek’s Paul Barrett (and many others) got duped when they regurgitated Pate’s press release in their stories without investigating what the decision actually means.

That Pate would even call the Ecuador litigation a “game” is a telling indication of how Chevron’s top brass view the illnesses and deaths of innocent people and the destruction of the pristine Amazon environment by his company’s dumping, as reported by 60 Minutes and countless other independent journalists like William Langewiesche at Vanity Fair and the acclaimed Argentine journalist Jorge Lanata. 

As background, the very existence of this three-person panel of private lawyers – who by rule exclude from their proceeding the Ecuadorian villagers who won the lawsuit – is hugely controversial.  Many prominent organizations, among them the Andean Commission of Jurists, question whether the panel has any legitimacy whatsoever given its conflicts of interest and lack of due process.  We will get to that shortly.  What is most interesting is how even this pro-investor panel gave Chevron virtually nothing in its recent ruling.

Chevron's ultimate goal is to have the arbitration panel find the government of Ecuador liable for Chevron's pollution in Ecuador, and then shift the massive cost of clean-up from the company's own shareholders to Ecuador's taxpayers.  Chevron's scheme is to orchestrate a public bailout of its recklessness to be financed by its impoverished victims.  That's the kind of bailout that would make AIG blush.

Hold your nose and bear with us, because this gets a bit legalistic.

The arbitration panel decided that a 1995 release granted by Ecuador’s government to Chevron’s predecessor company Texaco now absolves Chevron from any liability for “collective” environmental clean-up brought by individuals under a later 1999 law in Ecuador called the Environmental Management Act (EMA).   Putting aside the arrogance of three foreigners who believe they can rule in private on Ecuadorian law issues already ruled on by Ecuador’s public courts, the problem for Chevron and Pate is that the Ecuadorians did not use the EMA to obtain their judgment. 

They actually sued Chevron under provisions of Ecuador’s civil code dating back to 1861 (Articles 2214 and 2229) that the panel expressly said (in paragraph 110) that it was not commenting on.  Those provisions allow people with individual harm to sue on behalf of the community and they were not (and could not be under Ecuador’s Constitution) extinguished by any release signed by Ecuador’s government. 

The ruling of the arbitration panel can be read here.

The arbitration panel emphasized in its ruling that it was making a limited decision and that it was not deciding “the full effect” of the 1995 release agreement as it relates to the rights of the Lago Agrio plaintiffs to bring their case. Thus, Pate’s sweeping comment in Chevron’s press release (“the game is up”) is clearly inaccurate.  What’s doubly crazy is that Ecuador’s trial and appellate courts already ruled against Chevron when the company tried to claim the 1995 release barred the lawsuit.  Thus, by even addressing the issue the private panel was purporting to rule on a decision already made in a public court where the real parties in interest (the villagers and Chevron) actually participated.

We know it's crazy, but it gets worse.

Chevron had the original environmental lawsuit  – filed in 1993 in U.S. federal court against Texaco -- removed to Ecuador in 2001 on the theory that the country’s courts were a better forum.  At the time, Chevron lauded Ecuador’s courts as transparent and fair.  But once in Ecuador and out of the view of U.S. courts, Chevron manufactured a theory that the 1995 “release” (given after a clearly fraudulent remediation) somehow could be interpreted to bar all of the claims of the villagers that the company promised U.S. courts it would litigate in Ecuador.   This is an example of Chevron's subterfuge at its best.

No public court in the world ever has recognized as valid Chevron’s “theory” that the 1995 release bars the lawsuit.   Chevron never even argued the point when it was pleading with U.S. courts in the late 1990s to send the case to Ecuador.  One U.S. federal district judge in New York (Leonard B. Sand) was on the verge in 2007 of ruling against Chevron on the issue until the oil giant withdrew its petition at the last minute.  

That said, no matter what the arbitration panel decides (even if it gets it right) it won't much matter.  Its rulings not only will be ignored by Ecuador's government on the grounds they violate Ecuador's Constitution and international treaty obligations, but courts the world over in charge of enforcing the judgment will scoff at Chevron's transparent attempt to impose its brand of private justice on the world.  

No self-respecting country, least of all the United States, would ever let a private panel of arbitrators tell their independent courts how to enforce their own laws.   The idea is preposterous and not even Pate can possibly believe it.
 

There are other reasons why observers believe the arbitration panel as convened in this particular case lacks legitimacy and violates international law.  (See this background document for more detail.) 

The panel was convened by Chevron under the U.S.-Ecuador Bilateral Investment Treaty to settle supposed “disputes” between investors like Chevron and host country governments.  The matters over which it can properly assert jurisdiction pertain to disputes between foreign investors and governments, not private parties in a civil litigation as is the case here.

Ecuador did not even enter into the investor treaty with the United States until 1997, five years after Chevron had left the country with its billions of gallons of toxic waste still on the ground.  Yet the panelists get to determine their own jurisdiction.  To earn their exorbitant fees (they charge close to $1,000 per hour), the panelists stretched jurisdiction beyond the breaking point by concluding with scant basis that the ongoing Ecuador lawsuit qualifies as an “investment” under international law. 

The panel is accountable to nobody.  Not only are the Ecuadorian villagers and their lawyers prohibited from appearing, but briefs are filed in secret.  Hearings are in secret.  Decisions generally are kept secret.  There is no right of appeal.  Despite these fatal shortcomings, the panelists claim the outrageous power to override decisions of any public court system of a sovereign nation.   

Further undermining the credibility of the panel in Chevron’s case is that one member, the Argentine Horacio Grigera Noan, has an ongoing business relationship with Chevron’s lead lawyer, Doak Bishop of the American firm King & Spalding.  Grigera Noan has reaped enormous fees after being appointed by Bishop to various investor panels on behalf of Bishop’s corporate clients.  Grigera Noan invariably rules for Bishop’s clients, which almost always leads to more appointments and more fees for Noan.   (We note Grigera Noan moonlights as a professor at the Washington College of Law at American University, known ironically as a bastion of human rights advocacy.)

We are not the only people perturbed by this corrupt state of affairs.  The Andean Commission of Jurists and various international law experts have joined a growing chorus of critics targeting Chevron’s use of the arbitration panel to evade the Ecuador judgment.  See here, here, and here.  See this academic article exposing even more details of the “club” of 40 or so lawyers worldwide (none of them women) who have a monopoly on the lucrative private corporate arbitration market.

Journalists like Barrett of BusinessWeek and Fortune’s Parloff passed off their reliance on Pate’s press release as independent reporting.  Barrett wrote that the panel ruled the Ecuador case lacked a proper “legal foundation”.   Barrett needs to correct his story to explain Pate’s misleading comments.   He might also explain why respected observers believe the arbitration panel lacks any credibility no matter how it rules.

Parloff made the same mistake as Barrett.  We predict that Manhattan will be under water from global warming before Fortune prints a correction. (The pro-Chevron Parloff repeatedly has refused to print a letter to the editor critiquing one of his earlier “analyses” of the litigation, which as usual left out some critical context.  See here for the censored letter and here for a general critique of Parloff’s record of bias in his coverage of the case.)

Pate probably got a quick high out of his one-day fake press fix.   He needs it.  Not only is Pate busy navigating Chevron CEO John Watson’s conflict of interest and sworn deposition testimony related to the Ecuador case, he is also trying to beat back a shareholder revolt, fend off requests for an SEC investigation, and explain how his own lawyer Andres Rivero was caught handing a suitcase full of cash to one Ecuadorian judge while floating a $1 million bribe offer to another. 

Pate is also dealing with enforcement lawsuits in foreign courts while trying to run away from Chevron’s billion-dollar RICO case against the Ecuadorians and their counsel.  With a trial date nearing, Chevron is now prepared to drop all damages claims just to avoid a jury. 

For these and many other reasons, the “game” obviously is not up as Pate claims.  For Chevron, the truth always has a way of catching up to the lies and spin of its management team.

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Chevron Imports The Great Ted Olson to Save Its RICO Case

Signs of More Serious Trouble For Oil Giant As It Tries to Evade Ecuador Judgment
 

There is now more evidence Chevron is running scared about its retaliatory New York RICO case filed against Ecuadorian villagers and one of their lawyers, New York attorney Steven R. Donziger.   The great Republican lawyer Theodore Olson – who argued the winning side in the famous Supreme Court case that landed George W. Bush the presidency – is joining the company’s legal team just days before a critical argument before a New York appellate court.

After an eight-year trial held in Ecuador at Chevron’s request, the Ecuadorian communities in 2011 won a judgment against the oil giant for causing massive toxic pollution to the Amazon, as summarized here and in this segment on 60 Minutes.  Chevron wants payback, but it is suddenly getting cold feet now that the Oct. 15 trial date is nearing. See here and here for more about Chevron’s sudden case of the jitters.

In an astounding move, Chevron recently disclosed that it is ready to drop all damages claims against the Ecuadorians and Donziger (who are being sued for $60 billion) just to avoid a jury of American citizens.  It is becoming abundantly clear that the facts of this case will never be Chevron’s friend.  The Ecuador court found that Chevron’s own scientific evidence and internal audit reports not only proved the claims against it, but also showed the company tried to obstruct justice by ordering employees to destroy incriminating documents. 

That’s why Chevron asked Judge Lewis A. Kaplan to rule the RICO trial will not include the overwhelming scientific evidence of Chevron’s contamination in Ecuador.  Kaplan granted Chevron’s request, essentially disabling any possibility of a meaningful defense in the case.  (The defendants want to use the scientific evidence to prove Chevron’s charges of fraud are baseless.)

Chevron’s new plan is to drop all damages claims so that Judge Kaplan can decide the case alone and provide the company with an injunction blocking the winners of the lawsuit from enforcing their judgment worldwide.  There are many problems with this approach, which we explain below. But a trial before Kaplan would virtually guarantee the company a temporary victory – however hollow and illegitimate it might be in the eyes of the world. 

There is a big problem - Judge Kaplan now faces an embarrassing motion for recusal that will be heard by the Second Circuit Court of Appeals on September 26 in Manhattan.  With the trial scheduled to start soon after, the timing is not good for Chevron.

With its options narrowing, Chevron’s desperation is almost palpable.

Just days ago, the company quietly notified the Second Circuit that Olson will replace Randy Mastro as the company’s lead appellate lawyer in the upcoming argument.  Mastro is the former New York City deputy mayor (under Rudy Guliani) and political operative whose trial skills earned his client a $19 billion adverse judgment out of Ecuador.

Olson comes from a different class altogether.  He is the former Solicitor General of the United States under the Bush Administration and has argued roughly 60 cases before the U.S. Supreme Court.   He joins an estimated 2,000 other Chevron legal personnel from the 60 law firms used by the oil giant to try to avoid paying for its toxic calamity in the Amazon. 

The other new Chevron team member for the upcoming argument is Michael Mukasey, the former Attorney General of the United States (also under the Bush Administration).  Mukasey has applied to appear on behalf of the U.S. Chamber of Commerce, an organization that in recent years has received millions of dollars in contributions from Chevron.  Mukasey is the former chief judge of the Southern District of New York, where Kaplan sits.

Olson and Mukasey are key members of our country’s Republican legal machine – the same machine that brought us Bush v. Gore and the unconscionable Swift Boating of John Kerry during the 2004 presidential campaign.  That the Republican dream team is now mobilizing to protect Judge Kaplan deserves attention. Without Judge Kaplan, there is real danger that Chevron’s house of cards will collapse and the plaintiff’s bar might finally hold an oil major accountable on a mass scale for crimes and wrongdoing overseas.  That’s never happened before.

We digress to note that R. Hewitt Pate, Chevron’s General Counsel, served in the Bush Administration with both Olson and Mukasey.  To illustrate the warped value system of Chevron’s management team, the company gave Pate a whopping raise to $7.5 million the same year his legal team was hit with a $19 billion adverse judgment in Ecuador.  Pate has also authorized Chevron to pay an estimated $1 billion in legal fees since 2009 to Olson’s law firm, Gibson Dunn & Crutcher, to lead the assault on the Ecuadorian villagers and their counsel.

For Chevron, the entire purpose of the RICO case is to create a “stink factor” that might muck up enforcement actions the Ecuadorians have filed against Chevron assets around the world to collect on their judgment.  Judge Kaplan has unabashedly promoted the RICO case at every turn, calling the Ecuadorians the “so-called” plaintiffs and saying Donziger’s goal is to “fix the balance of payments deficit” of the United States.  He also claimed the Ecuador case “is not bona fide” litigation.

Chevron recently disclosed to Kaplan’s court that it has at least 114 lawyers working on the matter at Gibson Dunn.  Donziger is representing himself pro se.  As far as we can tell, he and solo practitioner Julio Gomez (who represents the Ecuadorians) are doing a pretty good job of beating back the advancing Chevron army. 

We note the last time Chevron showed up before the Second Circuit the panel of judges reversed Judge Kaplan’s illegal global injunction purporting to block the Ecuador judgment worldwide.  Mastro literally was laughed out of court when he could not answer basic questions from the panel.

Chevron is now asking Judge Kaplan to ditch a jury and impose the exact same injunction that the Circuit previously said was illegal.   It makes no sense, and leaves us scratching our heads. This is increasingly looking like a chess game of giants in which Donziger and his clients are treated as pawns.

Olson normally would never show up for a regular recusal proceeding.  But there is nothing regular about this one. Judge Kaplan is a vital asset to Chevron as it attempts to fulfill its longstanding promise to tie up the Ecuadorians with a “lifetime of litigation” if they don’t drop their claims.  As famed lawyer John Keker (Donziger’s former counsel) said last May, Chevron is trying to win by might what it cannot win on merit. 

(For background on Ted Olson’s previous foray into the Ecuador case on behalf of Chevron, read this blog posting from October 10, 2012.)

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Bribery Bombshell Threatens Chevron Legal Strategy In Ecuador Case

Late last week, lawyer Steven Donziger and the Ecuadorian villagers who have fought for decades to force Chevron to clean up its poisonous mess in their rainforest lands filed a motion in U.S. Federal court that could spell an end to the oil giant's legal maneuverings and attempts to evade responsibility for its toxic legacy in the Amazon.

According to the filing, Chevron has engaged in a “pattern of misconduct and corruption” including offering a $1 million dollar bribe to the Ecuadorian judge who ruled against the company in 2011, and ordered Chevron to pay $19 billion in compensatory and punitive damages.

A press release on Friday announced the bombshell revelations contained in the motion, which called for Chevron's retaliatory RICO suit—currently scheduled to go on trial in mid-October—to be terminated.

The filing outlines Chevron’s unlawful payments and bribes to witnesses and concludes that this conduct has “so damaged the integrity” of the proceedings that at this point, a fair trial is simply impossible.

“When the conduct is this egregious, there is simply no other way to ensure justice than to end the entire proceeding,” said Christopher Gowen, an attorney and spokesman who is advising the Ecuadorians and their attorney, Steven R. Donziger.

Supporters of the Ecuadorian indigenous and farmer communities who have suffered most from the massive oil pollution for which Chevron was found culpable, will be familiar with some of the cynical efforts the oil company undertook to corrupt the Ecuadorian legal proceedings since the trial opened in the oil boom town of Lago Agrio in 2003.

Last week's motion from the Ecuadorians and their US lawyer Steven Donziger lay out the sordid case of Chevron's admitted dirty tricks operative Diego Borja and the secret labs he helped set up to manipulate pollution sampling in the trial. The latest motion recounts the airtight evidence regarding Borja—including recordings of Chevron's former contractor admitting that the oil giant would lose the trial “like this” (with a snap of his fingers) if he revealed all the evidence he possesses of the company's guilt for contamination in Ecuador. But Chevron has paid Borja a staggering sum of $2.2 million in hush money, according to the filing.

But the bombshell in this latest motion is Chevron's attempt to bribe the judge who ruled against the company in 2011, after an epic 8-year trial. According to the press release:

One of the illicit payments – in the amount of $1 million -- was offered as a bribe to the Ecuador judge who wrote the opinion finding Chevron liable for $19 billion in damages for dumping toxic waste into the rainforest. The bribe was intended to coax the judge, Nicolas Zambrano, into renouncing his own ruling which was based on a 220,000-page evidentiary record accumulated over an eight-year trial, according to a sworn affidavit cited in the motion.

Zambrano intends to testify about the bribe offer in the RICO case should it proceed to trial as scheduled in mid-October, according to a recent court filing. Chevron filed the RICO action in New York federal court as a last-ditch attempt to thwart the Ecuador court judgment; the company was also countersued for fraud and extortion by Donziger, who has advised the Ecuadorians for two decades. (A summary of the overwhelming evidence against Chevron as found by the Ecuador court can be read here.)

The press release provides a summary of the evidence of Chevron’s illegal payments and bribes as outlined in the motion:

**Chevron lawyer Andres Rivero and another Chevron agent known as “Investigator #5” used a former Ecuadorian judge and key Chevron witness (Alberto Guerra) as a conduit to offer the $1 million bribe to Zambrano, whose sworn affidavit is available here. Rivero recorded himself paying Guerra thousands of dollars in cash out of a suitcase during a secret meeting in Ecuador. Guerra presided over the case for three months in 2003.

**Chevron signed a contract guaranteeing Guerra payments at least ten times his annual salary as an Ecuadorian judge in exchange for false testimony where he claims the Ecuadorian plaintiffs bribed him. The exorbitant payments were arranged directly in a meeting in Chicago by Randy Mastro, Chevron’s lead outside counsel at the law firm of Gibson Dunn & Crutcher. Mastro’s practice group already has been sanctioned once by a federal judge in the case for engaging in unethical conduct.

**The filing asserts that the benefits given to Guerra constitute criminal violations that run afoul of the Federal Anti-Gratuity Statute, which prohibits payments to non-expert witnesses for testimony. The argument that the payments to Guerra are illegal is supported by a sworn affidavit provided by Erwin Chemerinsky, a prominent ethics expert and Dean of the law school at the University of California, Irvine.

**The motion documents that Chevron, by its own admission, not only paid Guerra cash from a suitcase but moved his entire family to the United States; promised him an annual salary of $144,000, or roughly 30 times the per capita annual income in Ecuador; has provided him a car, health insurance, cell phones, a housing allowance, and payments for travel expenses and an immigration lawyer who happens to be none other than Ira Kurzbam, former President of the American Immigration Lawyers Association. Chevron appears to be helping Guerra seek political asylum in the U.S. under false pretenses, said Donziger.

**The motion also outlines $2.2 million in payments and “hush money” Chevron made to employee Diego Borja. Borja, who worked for Chevron’s legal team in Ecuador since 2004, has admitted on tape that he was the company’s “dirty tricks” operative during the Ecuador trial. He also admitted he tried to entrap a sitting judge in a bribery scandal, set up dummy companies, and that he and his wife ran a supposedly independent laboratory actually controlled by Chevron. For background on Chevron’s attempts to corrupt the Ecuador trial through Borja, see here.

**Chevron also used “coercion and the threat of financial ruin” to blackmail two U.S. scientists, Douglas Beltman and Ann Maest, into disavowing their prior sworn testimony that the oil company is responsible for extensive toxic pollution in Ecuador. Chevron even contacted clients of Stratus to falsely claim that the company had been found to have committed “fraud” in Ecuador as a way to pressure the scientists to “flip” to Chevron’s side.

**Chevron also engaged in witness tampering by coercing Christopher Bogart – a former financial backer of the Ecuadorians who runs a litigation hedge fund – to submit a false affidavit claiming he was misled about key parts of the underlying case. Bogart already has been discredited as a liar in a separate court filing that seeks to exclude his testimony.

According to the press release from Gowen, an American University law professor, Chevron is “reeling over the risk posed by its own RICO allegations given the obvious credibility problems of its witnesses.” Gowen also says that Chevron appears “utterly desperate” to avoid a jury trial in the RICO case.

Finally, the motion highlights the misconduct of the lawyers from Chevron's outside legal firm Gibson Dunn, & Crutcher.  It cites their “track record of presenting false or misleading testimony to U.S. courts on behalf of their corporate clients,” according to the press release. The motion requests legal sanctions of Randy Mastro, Andrea Neumann and Scott Edelman, who have been the architects of Chevron's legal strategy in their efforts to evade accountability.

With each passing day, Chevron looks increasingly desperate to avoid a jury trial in its retaliatory RICO suit.  Its best hope is for some sort of legal end-around that will allow its favored U.S. judge, Lewis Kaplan, to rule alone, virtually guaranteeing an outcome in Chevron's favor that almost certainly will not withstand an appeal. And with each passing day, the company's pathway to impunity for its crimes in Ecuador becomes more cluttered with roadblocks, fashioned from the perseverance of the communities in Ecuador's Amazon who continue to fight for justice.


For background on how Chevron decimated indigenous and farmer communities by dumping billions of gallons of toxic waste in Ecuador’s Amazon, watch this video overview or this 60 Minutes segment, or review this summary of the overwhelming evidence against the company.  Chevron is now fighting a $19 billion judgment against the company.

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