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

Chevron continues to use desperate tactics to escape $18 Billion Court Judgment

Alex Thorne: Husband of Chevron Employee Poses as “Journalist” to Undermine Environmental Group Critical of Oil Giant’s Ecuador Catastrophe

Oil Giant Continues To Use Cover of Independent Journalism To Escape $18 Billion Court Judgment

Amazon Defense Coalition

30 May 2011 – FOR IMMEDIATE RELEASE


San Francisco, CA – Alex Thorne, the husband of a senior-level Chevron employee, has been posing as an independent “journalist” to send e-mails designed to intimidate funders of a small environmental organization that has been critical of Chevron’s management for refusing to pay the company’s court-ordered $18 billion liability in Ecuador.

The stunning revelation about Thorne’s e-mails comes just days after several large Chevron shareholders blasted Chevron CEO John Watson for displaying "poor judgment" in Ecuador which “has led investors to question whether [Chevron’s] leadership can properly manage the array of environmental challenges and risks that it faces. The investors critical of Watson manage a combined $156 billion in assets and include New York’s pension fund, the nation’s third largest.

Thorne recently sent e-mails to several funders of the U.S.-based environmental group Amazon Watch in which he claimed to be working on an “article” for a publication he refused to specify. The e-mails then asked the funders “if it is time” to “reevaluate” their support for Amazon Watch in light of Chevron’s oft-criticized claim that the 18-year legal case is part of an extortion racket.

Thorne is married to Kristen Thorne, Chevron’s senior policy advisor on environment and energy issues. Alex Thorne did not disclose in the emails to Amazon Watch’s funders that he is married to a high-level Chevron employee or that he has operated a pro-Chevron website critical of the leaders of the Ecuador lawsuit.

“Alex Thorne’s phony emails are part of Chevron’s Karl Rove-style campaign designed to intimidate American citizens who are trying to hold Chevron accountable for committing environmental crimes and fraud in Ecuador,” said Karen Hinton, the spokesperson for the Ecuadorian communities who brought the lawsuit.

In one email to the Moriah Fund, which was forwarded to Amazon Watch, Alex Thorne says: “I’m writing an article highlighting Amazon Watch’s top donors which will include mentioning the Moriah Fund… My article highlights organizations such as yours and questions whether it is time to reevaluate your support for Amazon Watch.”


When confronted by telephone about his phony emails, Thorne confirmed to Hinton he had written them and said: “I am just a bored, stay-at-home Dad with nothing better to do.”

Representatives of the Amazon communities have long charged that Chevron committed environmental crimes in Ecuador and that its “extortion” claim is nothing more than a last-ditch ploy to mislead shareholders. Two Chevron employees are currently under criminal indictment in Ecuador for lying about the results of a purported environmental cleanup that the plaintiffs say was a clear case of fraud.

Amazon Watch, which is based in San Francisco near Chevron headquarters, has a handful of staff members and a $950,000 annual budget. In contrast, Chevron has 62,000 employees and grossed $204 billion last year, or an amount roughly 200,000 times more than Amazon Watch’s annual expenditures.

Despite their lack of resources, Amazon Watch’s staff members have had an outsized impact on Chevron. They have infuriated Chevron’s management by filing complaints against the oil giant with the Securities and Exchange Commission, by confronting the company’s Board of Directors during shareholder meetings, and by organizing protests outside the luxurious home of Chevron CEO Watson.

Just last week at Chevron’s annual meeting, Amazon Watch Executive Director Atossa Soltani accused Watson of having a personal conflict of interest over the Ecuador issue while several Chevron Board members looked on in stunned silence.

Along with lawyers for the Ecuadorians, Amazon Watch also has raised the possibility that Chevron violated the U.S. Foreign Corrupt Practices Act in Ecuador (the FCPA prohibits the bribing of foreign officials). Some of Chevron’s potential FCPA violations – which would expose the company to criminal liability in the U.S. -- have been summarized in the sworn affidavit of Ecuador attorney Juan Pablo Saenz, available here.


Chevron’s larger problem is that an Ecuador court in February imposed a cleanup tab of $18 billion for the deliberate discharge of billions of gallons of toxic waste into streams and rivers of the Amazon rainforest, where the company operated (via predecessor company Texaco) from 1964 to 1992. Chevron’s substandard operational practices in Ecuador – admitted to by the company at trial -- decimated indigenous groups and caused an outbreak of cancer and other oil-related diseases that will haunt tens of thousands of people for decades without a comprehensive remediation, according to evidence submitted by the plaintiffs.

For most of 2009, Alex Thorne maintained a website where he regularly attacked the leaders of the Ecuador lawsuit and Hinton.

After Hinton wrote in a press release about his wife’s participation in a “green technology” panel discussion that failed to mention Chevron’s environmental disaster in Ecuador, Alex Thorne created a separate website called “Hinton Communications Watch” that was designed to intimidate Hinton into stopping her work for the Ecuadorian indigenous communities, said Hinton. Alex Thorne later took down the websites and at the time apologized to Hinton.

This is not Chevron’s first attempt to use the image of independent journalists as cover for its campaign to undermine the legal claims of the impoverished Ecuadorian communities, said Hinton.

Last year, Chevron was caught trying to pay American free lance journalist Mary Cudahee $20,000 to spy on the plaintiffs in Ecuador by pretending she was conducting research for an article. Cudahee exposed the effort in The Atlantic.

In 2009, just days before a 60 Minutes segment critical of Chevron’s misconduct in Ecuador was slated to air, the company posted on the internet a pro-Chevron corporate video on Ecuador narrated by former CNN correspondent Gene Randall that was designed to look like a legitimate news broadcast. Chevron hid its role in paying for the production of Randall’s video until it was exposed by The New York Times.

Nor is Chevron shy about pushing the envelope when trying to intimidate its many vocal critics on the Ecuador issue.

Chevron CEO Watson ordered the arrest of five shareholder critics at the company’s 2010 annual meeting; Chevron took out newspaper advertisements attacking the U.S.-based Goldman Foundation for awarding its prestigious environmental prize to advocates for the Ecuadorian victims of Chevron’s human rights abuses; and Chevron recently filed a racketeering lawsuit in the U.S. federal court against 47 Ecuadorian villagers and their lawyers that named Amazon Watch as a “co-conspirator”.

Hinton noted that Chevron uses CRC Public Relations, which is known for launching vicious attacks against critics of its corporate and political clients. CRC, which has close ties to the right wing of the Republican Party, is infamous for designing the Swift Boat attacks ads that targeted 2004 presidential candidate John Kerry.

CRC is one of at least six public relations firms and four corporate law firms used by Chevron General Counsel R. Hewitt Pate to deal with negative fallout from the Ecuador judgment, apparently the largest environmental liability in history other than the BP Gulf spill, said Hinton. Pate is a former high-level political appointee in the U.S. Department of Justice under President George W. Bush and the mastermind of Chevron’s Ecuador litigation strategy, she added.

A Chevron spokesman recently said Chevron will not pay the Ecuador judgment and that the company plans to fight the Ecuadorian indigenous communities “until hell freezes over.”


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Contact:
Karen Hinton
Hinton Communications
1215 19th Street, NW
Washington, DC 20036
Karen@hintoncommunications.com
703-798-3109, cellular
480-275-3554, fax by email

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Miami Herald Catches Chevron In Lie About Ecuador Well Site

Miami Herald Catches Chevron In Lie About Ecuador Well Site
Reporter Finds Oil Sludge In “Remediated” Pit

Washington, DC – The Miami Herald has caught Chevron in a lie about its so-called “remediation” in Ecuador that the oil giant uses as its primary defense against an $18 billion judgment in a massive oil-contamination case brought by indigenous groups.

In a story published in today's newspaper, journalist Jim Wyss said he witnessed “thick oil slicks” only a few feet into the ground of a dirt-covered storage pit Chevron told him the day before had been remediated of all oil.


After watching a man dig into the ground at the Sacha 53 well site, Wyss wrote, “Within a few inches the dirt gives off the pungent odor of petroleum. Within a few feet the dirt glistens with oil residue. When a few handfuls of the soil are dropped into a bucket of water, a thick oil-slick coats the surface.”

Chevron has continually claimed to courts and the press that it conducted a remediation of the site.

This report is significant because Chevron has testified in front of U.S. Judge Lewis Kaplan of the Southern District Court of New York that it cleaned the site, along with many others. In fact, evidence has shown that Chevron simply covered the pits with dirt and never removed the toxins. Chevron has claimed to Kaplan that it is the victim of a racketeering scheme cooked up by the plaintiffs -- 30,000 rainforest residents – and their American and Ecuadorian lawyers.

The plaintiffs argue Chevron’s charges are only last-minute, desperate attempts to cover up its unlawful racketeering scheme in Ecuador, which led to the deliberate discharge of billions of gallons of toxic waste into the Amazon, killing off indigenous groups and causing an epidemic of cancer.

On a series of rulings over the last several months, Kaplan has cited the remediation agreement between Chevron and the Ecuadorian government as evidence that Chevron is not responsible for the contamination.

“This American journalist’s eyewitness account, along with massive evidence in the trial, puts the lie to Chevron’s claims to the U.S. court,” said Karen Hinton, spokesperson for the Ecuadorians.

In 2002, Chevron had the case – originally filed in the same New York federal court -- moved to Ecuador after submitting 14 separate affidavits claiming the court system was fair and transparent.

After the trial in Ecuador began in 2003, testing at the unlined oil pits left by the company in the jungle began to show illegal levels of life-threatening toxins. By 2007, when overwhelming evidence began to pour onto the court docket, Chevron was taking out advertising in the Ecuadorian newspapers accusing judges, the government and the plaintiffs of conspiring against the company.

In 2009, an Ecuadorian prosecutor indicated two Chevron lawyers and a dozen former Ecuadorian government officials for falsifying the remediation at Sacha-53 and other sites.

Judge Kaplan has, by and large, adopted Chevron’s view on the remediation agreement, writing in one opinion, “the release by Ecuador seems to have been intended to put an end to any claims or litigation concerning Texaco’s alleged pollution.”

The Miami Herald’s Wyss has a different account. He begins his story this way:

“Donald Moncayo (a plaintiffs’ representative) walks to the edge of a flat grassy field that once held two large pits that brimmed with a stew of water and crude from an oil-drilling operation. He lifts a heavy auger above his head and prepares to plunge it into the ground. “They (Chevron) always show you the shirt the coat and the tie,” he said of the area, called Sacha 53, which is now pastureland and spindly trees. “They never show you the tumor underneath the shirt.”

After describing the oil he saw and smelled only a few feet into the soil, he quotes Moncayo again:

“This is their remediation effort,” Moncayo says. “They’re no better than animals.’’

Chevron’s PR representative in Ecuador, James Craig, attempted to explain the oil away by asserting it may have “occurred naturally” or the Ecuadorians may have “spiked” the ground with oil. He even claimed that if Chevron didn’t completely clean the pit, the oil wouldn’t hurt anyone anyway.

“Knowing James Craig, he probably said all of this with a straight face,” said Hinton. “Chevron’s PR people make a lot of money to not only spin the facts, but to lie about them.”
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Karen Hinton
Hinton Communications
1215 19th Street, NW
Washington, DC 20036
Karen@hintoncommunications.com
703-798-3109, cellular
480-275-3554, fax by email