Showing posts with label Ecuador. Show all posts
Showing posts with label Ecuador. Show all posts

Thursday, May 5, 2011

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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Wednesday, April 27, 2011

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.


Tuesday, April 19, 2011

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