Two Motions In Chevron's One-Sided Show Trial

Judge Lewis A. Kaplan

Judge Lewis A. Kaplan continues to slide in Chevron's farcical "declaratory judgment" trial currently scheduled for November 14, 2011.

We have provided the copies of two important motions that were filed in the SDNY before Judge Lewis A. Kaplan.

The motions demonstrate how Judge Kaplan is failing to provide a fair trial which comports with basic notions of due process or fairness. The first motion, filed by the Ecuadorian plaintiffs who recently won an $18.2 billion judgment against Chevron for systematically poisoning Ecuador's Amazon, systematically demonstrates how Judge Kaplan's expedited schedule for the trial is not only "unfair to the Ecuadorian plaintiffs but would also not be consistent with procedures compatible with due process." The motion asks Judge Kaplan to continue the trial so that the Ecuadorian plaintiffs will have a reasonable amount of time to prepare a proper defense to Chevron's baseless allegations.


THE FIRST MOTION.

THE SECOND MOTION


The second motion, filed by lawyers for Steven Donziger, a lawyer who has represented the Ecuadorian plaintiffs for the entire 18-year history of the case and the primary target of Chevron's allegations, asks Kaplan for the third time to let Donziger fully participate in the November trial. The motion argues that Chevron now seeks, with Kaplan's tacit approval, a "do over" of the trial they lost in Ecuador and seeks to make Donziger the principal focus of their trial where, due to Kaplan's decisions, he has no right to defend himself. Today's motion is unambiguous on the impact of Kaplan's rulings to date: "Unless the Court rethinks some of its decisions about who can defend, and how and when that defense should happen, the 'do over' will be a one-sided show trial without any semblance of fairness or due process or concern for the merits."


Contact:

Hinton Communications
1215 19th Street,NW
Washington, DC 20036
Tel: 703-798-3109
Fax: 480-275-3554
E-mail: Karen@hintoncommunications.com


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Judge Rules That Filmmaker Must Give Footage to Chevron



A federal judge in Manhattan on Thursday granted a petition by Chevron to issue a subpoena for hundreds of hours of footage from a documentary about the pollution of the Amazon rainforests of Ecuador and the oil company’s involvement.

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Scholars Ask Appellate Court to Dissolve Order of Judge Lewis A. Kaplan

International Law Scholars Say Attempt by U.S. Judge to Block $18 Billion Court Judgment Against Chevron “Unlawful” and “Futile”

Scholars Ask Appellate Court to Dissolve Order of Judge Lewis A. Kaplan


New York, New York (June 13, 2011) – A group of 16 international law scholars have asked a federal appeals court in New York to overturn what they say is a U.S. trial court’s “futile” and unlawful injunction that purports to prohibit foreign citizens from Ecuador from collecting an $18 billion judgment against Chevron in courts around the world.

The scholars described the injunction, issued by Judge Lewis A. Kaplan, as a “futile act” that “is much more likely to antagonize the courts of other states” than be treated as persuasive authority, as Kaplan has claimed. They also described the injunction as “breathtaking in its attempts to arrogate a world-wide and exclusive jurisdiction in this case” to a U.S. court without any legal authority to back it up.

The scholars filed an amicus brief with the Second Circuit Court of Appeals (http://chevrontoxico.com/assets/docs/2011-amicus-16-legal-experts.pdf) asserting that Kaplan’s injunction “constitutes an internationally unlawful attempt to intervene in the domestic legal affairs of Ecuador.” The scholars asked the Second Circuit -- which is expediting an appeal of Kaplan’s order -- to dissolve the injunction.

“The preliminary injunction directly intrudes into the external administration of Ecuadorian justice because recognition and enforcement of Ecuadorian judgments are issues each state is permitted to decide freely,” argued the law scholars, who are led by Donald K. Anton of the Australian National University College of Law in Canberra.

Those signing include public international scholars from South Africa, Spain, Finland, Italy and the United States. All made it clear they were not taking a position on the merits of underlying case.

The law scholars wrote that Kaplan’s injunction violates international law, interferes in the foreign relations of the U.S., would potentially expose the U.S. to legal claims from Ecuador, and would be impossible to enforce.

The scholars also argued that neither Kaplan nor Chevron “has cited any statute, rule, case or treaty” that would authorize the injunction.

Besides Anton of the Australian National University College of Law, the brief was signed by Professor Werner Scholtz of South Africa; Professor Belen Olmos Giupponi of Spain; Professor Timo Koivurova of Finland; Professor Laura Westra of the University of Milan; and several U.S. scholars, including Professor James D. Wilets, Chair of the Inter-American Center for Human Rights at Nova Southeastern University in Ft. Lauderdale.

The Ecuadorians, members of 80 indigenous and farmer communities, recently won the judgment after an eight-year trial in Ecuador. They originally filed the case in U.S. federal court in 1993, but in 2002 a judge granted Chevron’s request to shift the case to Ecuador after the oil giant praised that country’s courts as fair and transparent.

The Ecuador trial court in February found Chevron liable for dumping billions of gallons of toxic waste into the waterways of the Amazon, poisoning an area the size of Rhode Island and decimating indigenous groups with oil-related diseases such as cancer. The company operated in Ecuador from 1964 to 1992.

Chevron began to attack Ecuador’s courts in 2004 after the scientific evidence in the trial pointed to its culpability. As a judgment in Ecuador was imminent, Chevron convinced Kaplan to issue the injunction without conducting an evidentiary hearing and after rejecting attempts by the Ecuadorians and their counsel to submit evidence.

While presiding over the case, Kaplan seemed to mock the Ecuadorian indigenous groups in his comments from the bench. He speculated that the lawsuit was part of a “game” brought about by “the imagination of American lawyers” trying to solve the balance of payments deficit of the U.S.

Kaplan also seemed to question the existence of the plaintiffs by using the modifier “so-called” when writing about them in his decisions. The Ecuadorians have requested that the appellate court order Kaplan off the case because of his “deep-seated antagonism” toward their lawsuit (http://chevrontoxico.com/assets/docs/2011-petition-writ-mandamus.pdf).

The Ecuadorians have rejected Kaplan’s jurisdiction and say they will seek lawful enforcement of their judgment in countries where Chevron has assets, said Karen Hinton, the spokesperson for the Ecuadorian plaintiffs.

A three-judge panel in New York is expected to hear argument on Kaplan’s injunction in late July or early August. An Ecuador appellate panel is also reviewing the Ecuador trial judge’s decision, which was challenged by both parties.

The international law scholars submitted one of five amicus briefs asking the appellate court to dissolve Kaplan’s injunction. Others were submitted by the government of Ecuador; Professor Bert Neuborne of New York University School of Law; Earth Rights International; and the Environmental Defender Law Center.

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Contact

Amazon Defense Coalition
13 June 2011 – FOR IMMEDIATE RELEASE
Contact: Karen Hinton at 703-798-3109 or Karen@hintoncommunications.com

Dinapoli To Chevron: Resolve Amazon Lawsuit

FOR RELEASE:
Immediately
May 25, 2011



DiNAPOLI TO CHEVRON: RESOLVE AMAZON LAWSUIT
Standoff on Poor Ecological Record Bad for Business



New York State Comptroller Thomas P. DiNapoli and a coalition of investors today released a letter to oil giant Chevron urging the company to settle its 20-year legal battle with indigenous populations in the Amazon rainforest. The long-running court case alleges that Texaco, which merged with Chevron 10 years ago, destroyed huge tracts of the rainforest by dumping billions of gallons of oil waste products over several decades. Citing the “grave reputational damage” Chevron has suffered due to the lawsuit, DiNapoli and other investors called on the company to promptly negotiate a reasonable settlement to prevent further shareholder damage.

“It’s time for Chevron to face reality,” said DiNapoli, trustee of the $140.6 billion New York State Common Retirement Fund (Fund), which owns 7.5 million Chevron shares worth an estimated $780 million. “The effects of this horrific, uncontrolled pollution of the Amazon rainforest are still being felt today. Investors don’t derive any benefit from this never-ending courtroom drama.

“The entire case is looming like a hammer over shareholders’ heads. Chevron should start fresh with a new approach that embraces environmental responsibility and risk management as part of its corporate culture. More legal proceedings will only delay the inevitable.”

For nearly 25 years, beginning in 1964, Texaco and its joint venture partner Petroecuador dumped nearly 16 billion gallons of oil waste products into the Amazon rainforest. The two companies also spilled nearly 17 million gallons of oil from their trans-Ecuadorian pipeline operation between 1971 and 1991 —50 percent more oil than was spilled by the Exxon Valdez crash.

In a letter sent in November 2008, DiNapoli called on Chevron’s board of directors to come to an equitable settlement in order to avoid substantial penalties in an Ecuadorian court. Chevron refused to negotiate, and in February, 2011 the Ecuadorian Provincial Court awarded plaintiffs nearly $18 billion in compensatory and punitive damages. The Ecuadorian court judgment is the second-largest of its kind, topped only by BP’s $20 billion fund established to settle claims stemming from the 2010 Gulf of Mexico oil spill. DiNapoli is co-lead plaintiff in an ongoing class action lawsuit filed against BP last year.

In an effort to improve Chevron’s environmental policies, DiNapoli has co-sponsored a proposal calling for the appointment an independent board director with a high level of environmental expertise. Shareholders are expected to vote on the resolution at Chevron’s annual meeting today (May 25).

Follow us on Twitter: @NYSComptroller


CONTACT: Olayinka Fadahunsi, OFadahunsi@osc.state.ny.us
(212) 681-4840

Chevron fights justice in Ecuador on two fronts, but needs to win everywhere

~ By Marco Simon, Legal Director, Earth Rights International

Since February, Chevron has been facing what is probably the largest environmental judgment in history-- an $8 billion award from an Ecuadorian court for contaminating the Ecuadorian Amazon. (That judgment is now available in English, below, courtesy of Chevron.) They've gone on the offensive against this judgment on two fronts. But they need to win not just these cases, but every other one that the plaintiffs might file.

The plaintiffs' strategy has become known through the release of the so-called "Invictus" memo. That memo, drafted by law firm Patton Boggs for the Ecuadorian plaintiffs, outlines a global enforcement strategy. The Ecuadorians can go after Chevron in the US, but they can also try to enforce the judgment in Argentina, Brazil, Venezuela, and dozens of other countries where Chevron operates or has assets. Not surprisingly, Chevron is working hard to prevent that.

Chevron's first assault on the Ecuadorian case was an international arbitration against Ecuador, filed in September 2009. (Although such arbitrations are typically secret, Chevron posted its complaint to its website.) Under the guise of international investment law, Chevron wants to have the Ecuadorian government interfere in its own court system, to tell the courts that Chevron's not responsible for the pollution in the Amazon.

I think Chevron's case in the arbitration is thin. Working with the International Institute for Sustainable Development and the Ecuadorian indigenous rights group Fundacion Pachamama, ERI filed an amicus brief with the arbitration tribunal last fall, arguing that the tribunal shouldn't even hear the case. We learned last week that the arbitration tribunal rejected our brief, unfortunately--but it still hasn't decided whether it will hear Chevron's case.

(The amicus process in arbitrations is far from transparent. Both Chevron and Ecuador apparently made several submissions to the arbtirators concerning whether our brief should be accepted, but we were not able to see or respond to any of them. Chevron even claimed that ERI has "a longstanding record of asserting baseless claims against Chevron." Note to Chevron: just because you keep getting accused of environmental and human rights abuses does not mean the charges are baseless.)

Chevron's second attack is in its lawsuit against the Ecuadorian plaintiffs and their lawyers in New York. So far they've had some success--federal district court judge Lewis Kaplan has issued a preliminary injunction prohibiting the Ecuadorians and their lawyers from taking steps to enforce the Ecuadorian judgment. But that success may not last.

As a preliminary injunction, Judge Kaplan's order is subject to immediate appeal to the Second Circuit Court of Appeals, and the plaintiffs' lawyers have already filed their notice of appeal. At this stage of the case, Chevron is entitled to some presumptions in its favor, so even if they ultimately have no grounds to attack the Ecuadorian judgment, it is possible that a preliminary injunction will stand. But Chevron's entire case is premised on the notion that Judge Kaplan has jurisdiction over the Ecuadorian plaintiffs and other members of the plaintiffs' class action. That is a highly questionable position, and one that will receive considerable scrutiny from the Second Circuit. Even if Judge Kaplan can prevent the American lawyers from proceeding to enforce the judgment, if he doesn't have jurisdiction over the Ecuadorians, he cannot prevent them from going to other countries to seek enforcement (as outlined in the "Invictus" memo).

The Second Circuit may also be concerned with the propriety of interfering with foreign countries' judicial processes. I'm not aware of any case where a court has ever even tried to restrain foreign plaintiffs from enforcing a foreign judgment in foreign jurisdictions. Chevron has every opportunity to challenge the judgment in the Ecuadorian courts; Chevron chose to litigate in Ecuador over the plaintiffs' objection, and the Second Circuit may well hold them to that choice. In fact, in a recent decision in a related case, the Second Circuit said that Chevron was bound by its original promise "to satisfy any judgments in Plaintiffs' favor, reserving its right to contest their validity only in the limited circumstances permitted by New York's Recognition of Foreign Country Money Judgments Act.

Chevron argued, and Judge Kaplan accepted, that the judgment is unenforceable under that law for two reasons: because Ecuador does not provide due process, and because the judgment was obtained by fraud. But Chevron's own predecessor, Texaco, argued that the case should be sent to Ecuadorian courts in the first place, even though the plaintiffs then objected that those courts did not provide due process; Chevron may not be able to complain about that now. And what Chevron calls "fraud" was fully aired in the Ecuadorian court--all of the supposedly fraudulent evidence that Chevron is now presenting to Judge Kaplan was also presented in Ecuador, so Chevron can't really say that the plaintiffs defrauded the court.

Ultimately, even if Chevron wins the enforcement battle in the US, that doesn't end the matter, because the plaintiffs will go to other countries to enforce the judgment. The plaintiffs only need to win once or a few times, while Chevron needs to win everywhere. Even Chevron wins twenty cases, just one loss could cost the company hundreds of millions or billions of dollars.

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Chevron Scrubs Lawsuit to Block Ecuador Award

Chevron Scrubs Lawsuit to Block Ecuador Award

~ By Adam Klasfeld

MANHATTAN (CN) April 22 - With little fanfare, Chevron dropped a charge from their racketeering lawsuit against an attorney who helped engineer an environmental case that resulted in an $18 billion judgment against the company in Ecuador.

As the parties are gearing up for a November trial in Manhattan to block the award, Chevron filed a proposed amended complaint on Thursday that removes attorney Steven Donziger as a party to one of the counts.

Donziger, however, is not too happy about the change, as it could prevent him from participating in a trial to determine whether the judgment he secured is enforceable.

Chevron spokesman Kent Robertson told Courthouse News that it made the change because Donziger does not "have a dog in that fight." He added that the Ecuadoreans can seek any lawyer they want to defend the judgment.

After Chevron filed the amended complaint, a spokeswoman for Donziger's Ecuadorean clients said that Chevron was engaging in an "un-American" bid to interfere with the attorney's due-process rights. Spokeswoman Karen Hinton added in an interview that Chevron's explanation was "complete nonsense."

Not only does Donziger have a dog in the fight, he is the central figure of Chevron's basis for attacking the judgment, Hinton said.

Well before the Lago Agrio, Ecuador, court entered its Feb. 14 verdict against Chevron, the oil giant condemned the proceedings there as fraudulent, and it accused of Donziger of acting like an organized crime leader in how he handled the case on behalf of Ecuadorean natives.

On Feb. 1, Chevron filed a federal lawsuit against Donziger and several other defendants in Manhattan, accusing them of violating anti-racketeering law, a statute originally conceived to deter mob bosses and gangsters. The lawsuit named dozens of other defendants from the Ecuadorean trial for counts fraud, conspiracy, tortious interference and related counts.

By March, Chevron had asked U.S. District Judge Lewis Kaplan to grant an early trial on Count 9 of the lawsuit, seeking a judgment declaring the $18 billion award unenforceable.

San Francisco-based attorney John Keker, who represents Donziger, said that Chevron was trying to interfere with his client's constitutional rights to fair trial.

Chevron has received the lion's share of rulings in Judge Kaplan's court, and this maneuver proved no different. In granting the request for a separate trial on Count 9, Kaplan said it was the key claim of Chevron's complaint.

"The core of this case is the issue of the enforceability of the Judgment outside of Ecuador," Kaplan wrote on April 15. "Once that issue is decided, one way or the other, it is likely that the rest of the case will vanish or at least pale in significance."

Days after Kaplan issued the order, Chevron amended its original complaint, adding new evidence and quietly dropping Donziger from Count 9.

In an ironic twist, Donziger, who has spent months blasting the "false and malicious" allegations against him, apparently want this charge to stand, for now.

Hinton, the Ecuadoreans' spokeswoman, says that Chevron is "petrified" to face off against Donziger's lawyer, Keker, who recently won a sex-discrimination jury trial against Chevron in California.

A footnote of Kaplan's April 15 order suggests Chevron has been planning to eliminate Donziger from the count, and that Kaplan may support the motion.

"Attorney Donziger, for example, is named as a defendant on Count 9," the order states. "Nevertheless, Chevron already has asserted that only the LAPs [Lago Agrio plaintiffs] and the Amazon Defense Front are entitled to contest the declaratory judgment claim because only they are judgment creditors. ... They have indicated also that either the Court or Chevron could drop him as a defendant on that count. ... While the Court does not now express a view on these matters, it is appropriate to recognize that changes in the parties may be in the offing and that those changes, should they occur, could further reduce or eliminate any overlap of proof."

Robertson, the Chevron spokesman, said Chevron dropped the charge based on "some observations that Judge Kaplan made in prior orders."

"The people who own the judgment are the named plaintiffs," Robertson said. "The [Ecuadorean] plaintiffs, or the Frente, could use any attorney on the planet, but Donziger doesn't have a dog in that fight. ... Donziger and his chosen counsel will have every opportunity to explain his misconduct."

Hinton was incredulous about Chevron's explanation in a phone interview.

"Chevron is accusing Steven Donzinger of orchestrating the fraud that would lead to the judgment not being enforceable," Hinton said, adding, "He doesn't have a dog in that fight?"

"To prevent Donziger from defending himself, Chevron is engaging in un-American behavior to deny due process to a litigant just like the company has tried to deny due process to thousands of its victims in Ecuador," Hinton said in a statement.

A trial date has been set for Nov. 14.