Friday, November 14, 2014

Chevron's Sham Remediation in Ecuador: Toxic Oil Pits Continue to Contaminate

Reposted from The Huffington Post

Chevron, Chevron Quite Contrary, How Does Your Garden Grow

With Polluted Soil & Toxic Water

And Wealthy Lawyers All In A Row

During the historic contamination trial against Chevron in Ecuador, the company often took journalists to its so-called "remediated" oil pits to prove that its predecessor Texaco cleaned its "share" of one of the world's worst environmental disasters, if not the worst.

Chevron's well-heeled lawyers would sometimes arrange for a nice picnic near the pits to show reporters how green its gardens had grown in the Amazon rainforest since Texaco signed a 1995 agreement with the Government of Ecuador to remediate toxic pits.

But lurking beneath the vegetation was and is pure crude mixed into the soil and underground drinking water and laced with carcinogens, such as benzene and cadmium.

Six different sets of tests have shown that Texaco only dumped dirt on top of the pits to hide the contamination, not clean it.

And, eight Ecuador judges and two U.S. judges who've heard evidence related to the 22-year-old lawsuit have either ignored the remediation agreement, thrown it out or stated it had no merit in Chevron's defense.

Ignoring the evidence, the oil giant continues to tout the agreement as its "get-out-of-jail-free" card, and U.S. reporters continue to use it in their stories as a legitimate response to the Ecuadorians' charges, while the "remediated" pits continue to leech dangerous toxins into the soil and water that indigenous peoples and rainforest villagers depend on for sustenance.


The contamination of indigenous' ancestral homelands and the disease and death left behind is unlike anything you have ever seen. And, even though Ecuador's Supreme Court has upheld the $9.5 billion judgment against the oil giant, Chevron refuses to pay, arguing the agreement released it from any liability.

So, let's look a closer look at the agreement and the remediation itself:

Travel to any of the pits that Texaco agreed to clean and dig a few feet under the ground and you will find oil.

How does Chevron explain this? With classic Chevron chutzpah.

The company maintains that in the dead of night rainforest villagers "spike" the jungle floor with oil by digging holes at the pits, pouring fresh oil into them and covering them up with dirt and vegetation so they can return the next day with a visitor to prove Chevron is lying about the remediation.

With a straight face, Chevron spokesperson James Craig peddles this outrageous story to reporters, including this Miami Herald reporter:

"...Moncayo (an Ecuadorian) plunges his auger into the ground. 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.

"'This is their (Chevron's) remediation effort,' Moncayo says. 'They're no better than animals.'

"The (Ecuadorians) say it's proof that Chevron lied about the cleanup and then got compliant government officials to sign-off on its shoddy work.

"Chevron spokesman...James Craig, said it's not surprising to find degraded crude at the site. It might be naturally occurring, Moncayo might have dug outside the boundaries of the remediation area, or the plaintiffs might have spiked the ground with oil (emphasis added) to discredit Chevron, he said.

"'Even if you do find hydrocarbons in the ground, it doesn't mean that they're a risk to people's health or the environment,' Craig said."

(Read similar descriptions in The Telegraph, Associated Press, Bloomberg Markets, Washington Post, NY Times and Rolling Stone, among many others.)

Craig's explanation would be hilarious if the issue of remediation wasn't so pivotal to the outcome of the litigation battle, being fought now in countries where Chevron's assets can be seized as payment for the judgment. (Chevron has few assets in Ecuador.)

For the most part, Chevron doesn't dispute the contamination. One of its local lawyers, Rodrigo Perez Pallares, even admitted the company dumped 15 billion gallons of toxic waste into waterways.

In addition to intentionally dumping toxic water into streams, Texaco (Chevron bought Texaco in 2001) also built over 900 huge, unlined waste pits to permanently store pure crude oil and wastewater laced with carcinogens that are a byproduct of the drilling process.

Instead Chevron's army of lawyers argues that Texaco cut a deal with the Government of Ecuador to clean a small percentage (162 of 900 or so) of the oil pits in exchange for immunity from future lawsuits.

Yet even upon cursory examination, Chevron's so-called "release" is not even close to what the company claims.

The agreement, negotiated after the Ecuadorians filed their original lawsuit in the U.S. in 1993, released Texaco only against government claims of contamination. It expressly carved out any claims held by individuals, such as the Ecuadorians'. A Memorandum of Understanding between Texaco and Ecuador's government, signed in 1994, stated clearly that third-party private claims should not be "prejudiced" by the agreement.

From 1995 to 1998, Texaco conducted its fake cleanup – or cover-up, if you will. During the same time, Texaco's lawyers waved the remediation agreement in front of the U.S. federal court, hearing the contamination case in New York. But the American judge took no note of it, given that not even Texaco argued at the time that it trumped the claims of private citizens that were pending against the company in the lawsuit.

Later, another federal judge also caught onto Chevron's subterfuge, in a related arbitral proceeding that ended up in U.S. federal court.

U.S. Judge Leonard Sand analyzed the "release" agreement and, for all practical purposes, said it had nothing to do with the Ecuadorians' claims.

The learned Judge Sand concluded:

" would be extremely difficult for [Chevron] to establish that claims nominally brought by third parties in the Lago Agrio litigation were covered by the 1995 and 1998 Agreements between Texaco and Ecuador: it is highly unlikely that a settlement entered into while (the case) was pending would have neglected to mention the third-party claims being contemporaneously made ... if it had been intended to release those claims or to create an obligation to indemnify against them." (Republic of Ecuador v. ChevronTexaco Corp., 376 F. Supp. 2d 334, 374 (S.D.N.Y. 2005).

Fearful that Judge Sand would expose the release agreement for what it was, Chevron simply pulled its lawsuit back and ended the case.

While Chevron ran for the hills to avoid Judge Sand, it convinced federal Judge Jed Rakoff that the underlying claims case should be tried in Ecuador rather than in the U.S. To get the case transferred to Ecuador, the company filed no fewer than 14 sworn affidavits praising Ecuador's judicial system as "independent" and "fair". In 2003, per Chevron's request and Judge Rakoff's order, the villagers re-filed their lawsuit in Ecuador.

By 2013, after an arduous trial that produced 105 expert reports documenting Chevron's pollution, three layers of Ecuador's courts – trial, appellate, and Supreme Court – had ruled against the company. No fewer than eight appellate judges held Chevron responsible for the contamination and ruled that the 1995 remediation agreement did not apply to the private claims in the case and thus was without merit as a defense.

Even though Chevron had previously promised Judge Rakoff and three U.S. appellate judges that it would accept Ecuador's jurisdiction and abide by its court decisions in exchange for moving the case to Ecuador, Chevron has refused to pay and continues to argue in any court that will hear its complaints that the remediation agreement frees it from all responsibility for the damage it caused.

But, if that's really the case, why doesn't the remediation agreement have words to that effect? Or have the signatures of the villagers who brought the case? Even if a court ruled that the agreement released the claims (none has), the problem with the remediation itself remains. Why?

At best, it was terribly inadequate. At worst, it never happened. In either event, it was a sham.

Most likely, Texaco's contractor dumped dirt over the pits to cover up the oil and called it a day. Over time, some vegetation grew on top of the dirt and that's why Chevron began having picnics to show reporters how green its gardens grew.

Which brings us back to Chevron's James Craig and the band of merry Ecuadorians digging holes under full moons in the jungle to "sabotage" Texaco's so-called remediation.

Six different field tests taken by different parties, including those taken by Chevron, prove the remediation was a fraud. The so-called "cleaned" pits are just as contaminated as those not cleaned. See here for information about the field tests described below.

1) Chevron's own tests taken at Texaco's remediated well sites show illegal levels of total petroleum hydrocarbons (TPH). For example, Chevron found 13,000 parts per million (ppm) of TPH levels at the oil well site, known as Shushufindi 48. Ecuador requires the TPH level to be below 1,000 ppm; the average U.S. standard is even lower, at 100 ppm.

2) Chevron also took additional tests in March 2009, as the trial was coming to a close. Chevron's expert Marcelo Munoz tested eight purportedly "remediated" sites and found illegal levels of contamination at two. Chevron refused to pay Munoz for his report, even though the oil company requested that he conduct the tests.

3) In 2003, five years after the fake cleanup, Ecuador government auditors reported they had discovered pits oozing with oil and concluded the government had "erred in certifying" the cleanup. "Texaco has caused irreversible damage," stated a report by the General Controller, a government agency that audits public contracts. "The environmental remediation and repair agreement goes against the country's interest." The auditors' tests found that over 85% of pits tested had toxic levels higher than 1,000 ppm of TPH. They also found oil seeping out of 41 "remediated" Texaco waste pits and said 59 pits had been left uncovered.

4) In 2009, an Ecuador prosecutor ordered yet another series of tests. Of the 20 tests conducted at nine sites, 16 returned with toxic levels higher than the Ecuadorian standard of 1,000 ppm, and of those, 13 had levels higher than 5,000 ppm.

5) The Ecuadorians also did a series of tests at the "remediated" pits and found TPH levels higher than 30,000 ppm.

6) And, in 2013, a U.S. environmental engineering firm, The Louis Berger Group, did additional tests for the Government of Ecuador and found, once again, high levels of contamination. The American company also reviewed the work of Chevron's experts at the so-called remediated sites and found numerous flaws and incorrect conclusions. See pages 35 to 42.

All of this evidence adds up to one thing: Texaco committed fraud against the Ecuador government. And Chevron has done the same by lying about the remediation to Ecuador and U.S. courts.

Chevron is responsible for what Texaco did. It's also responsible for what Texaco never did – which was cleanup its toxic mess that is literally killing or threatening to kill thousands of people from cancer.

Thursday, October 30, 2014

Donny Rico Gives Credit Where Credit Is Due: Judge Kaplan

Reposted from Eye on the Amazon

Chevron's retaliatory RICO case against the Ecuadorians and their lawyers would not have come about were it not for the generous suggestion of U.S. Federal Judge Lewis Kaplan. Chevron spent millions upon millions filing cases against the Ecuadorians everywhere other than Ecuador once the company saw the verdict was about to come down, but when they met Kaplan, they hit pay dirt.

Chevron's strategy has always been to denounce and attempt to discredit any adverse decision from the Ecuadorian judicial system, but Kaplan gave them something they'd never dreamed of: a trial without the facts. An excellent breakdown of the weaknesses is laid out in a recent post on the Huffington Post.

In reality Chevron only cares about Kaplan's "facts." What they want most is to be able to tout that a US Federal Judge found that there was fraud – to the media, to their shareholders and to foreign courts, even if they have no legitimate legal remedy available to them. It's a SLAPP suit on steroids. Of course, you wouldn't know that if you read the business media's fawning reporting in Chevron's favor, each outlet trying to out scoop the other in repeating the company's talking points.

Donny Rico nails it, but to hit a few of Kaplan's finest moments:

  • Kaplan suggested the case be brought in the first place
  • Kaplan rejected normal procedure and assigned the case to his own court
  • Kaplan began by calling the Ecuadorians "so-called" plaintiffs
  • Kaplan issued a global injunction before even hearing the case (later slapped down)
  • Kaplan refused to let the evidence of Chevron's misdeeds be considered
  • Kaplan treated the Ecuadorians like second class citizens
  • Kaplan allowed Chevron to seize protected and privileged documents
  • Kaplan violated the First Amendment rights of journalists and others allowing Chevron to seize private emails and other protected documents
  • Kaplan refused to allow a jury in the case
  • Kaplan decided not to disclose that he owns Chevron stock through several mutual funds
  • Kaplan permitted double hearsay testimony from an admitted liar as the key witness for Chevron

Remember, these are just highlights. For a more complete breakdown check out the "Mockery of Justice" report.

Donny Rico is out there telling it like it is – a glowing example of corporate power abusing the legal system to trample people and planet. If allowed to stand, Kaplan's legacy could make Citizens United look like just the beginning.

Please vote for Chevron in the 2014 Corporate Hall of Shame today.

Wednesday, October 22, 2014

A Hard Look at NOW's Support for Chevron in Ecuador Case Raises Ethical Concerns

NOW’s Elaine Wood Questioned About Failure to Tell Appellate Court About Her Business Ties to Chevron

Reposted from The Chevron Pit

NOW's Elaine Wood Questioned About Failure to Tell Appellate Court About Her Business Ties to Chevron

The relationship between the National Organization for Women ("NOW") and Chevron in the Ecuador pollution case is getting even more interesting. (For background, see this press release where Ecuadorian women criticized NOW and this blog for context.)

Figuring out why NOW's legal arm (called "Legal Momentum") weighed in before a federal appellate court on behalf of Chevron's targeting of indigenous villagers and their lawyers in Ecuador is the question. We think we now are getting close to the answer.

We have verified that Elaine Wood, the Board Chairperson of NOW's Legal Momentum, is a managing director for a private corporate consulting firm that counts none other than Chevron as a client. At least three principals at the firm, called Alvarez & Masal, list Chevron as a client on the company's website.

That information comes on top of our disclosure last week that Chevron made a sudden and very major contribution to NOW'S legal group in 2013 when it became apparent the case would end up before the New York appellate court. The donation came at a time when Ms. Woods was a member of the organization's Board of Directors. She became Chairperson of that board earlier this year.

Alvarez & Marsal claims on its website that Ms. Wood "conducts due diligence and fraud investigations and advises on corporate compliance" for the company. The bio of Ms. Woods, available here, also indicates she worked for 15 years as a top-level executive at Kroll. Kroll is the private investigations firm that has spied on and harassed U.S. lawyer Steven Donziger and his colleagues in exchange for millions of dollars of fees paid by Chevron.

Ms. Wood might consider using her "corporate compliance" skills to figure out how to comply with federal disclosure rules.

It is a requirement under the federal rules that any ties to a party in a litigation be disclosed in the first footnote of an amicus brief by a supposedly independent entity. At a minimum, Ms. Wood should immediately pull back NOW's brief and re-file it with a proper disclosure so the court can have the information it needs to assess the organization's credibility on the issue being considered.

That said, this incident can be enlightening for those who want to understand how Chevron uses its deep pockets to engage in "soft corruption" of governments and non-profit organizations. That is far more interesting than the technical legal issue involved.

The legal position being advocated by Chevron and NOW – that private parties should be able to use the civil racketeering law to target their political and litigation adversaries – is highly dubious and likely to lose in court. For more on the flaws in the Chevron/NOWapproach, read how Chevron's own lawyers opposed the idea in another case. The overwhelming weight of legal authority in our federal courts is against Chevron on the issue. Also against Chevron is the U.S. Department of Justice and the U.S. Chamber of Commerce (which does not want racketeering laws to target corporations). Long time pro-business stalwart Ted Olson, who will argue Chevron's appeal in the Ecuador case, also opposed Chevron's position when he was Solicitor General in the last Bush Administration.

Even with the limitations of NOW's legal argument, the organization has a right to make itself heard. But to do so in this fashion – in apparent exchange for a donation from a company that has spent huge sums to undermine the valid legal claims of impoverished women suffering in distant lands – reflects poorly on the organization and its members. To do it without the required court disclosure makes it more troubling.

Indigenous women in Ecuador for two decades have been part of an extraordinary community-based effort to hold Chevron accountable for deliberately dumping billions of gallons of toxic waste into the Amazon and creating an ecological calamity of shocking proportions. This dumping is visible for the world to see and has been verified by hundreds of journalists and visitors to the region as well as three layers of courts in Ecuador.

The question for NOW: why would it sacrifice its credibility for what appears to be temporary support from a big oil company? Even in Ms. Wood's "friend of the court" brief, there is no mitigating language distancing NOW from Chevron's atrocities in Ecuador. It reads as if it was designed, if not actually written by, a Chevron lawyer.

The easy answer is because NOW wants to use U.S. racketeering laws against anti-abortion protestors. But that's a superficial and in our view unsatisfactory explanation. NOW can blast away at anti-abortion protestors without having to give cover to Chevron's completely abusive litigation tactics in an entirely different case.

The more plausible explanation involves the skillful way in which Chevron uses its money to gin up influence. This behavior is consistent with the company's misconduct throughout the two decades of the Ecuador litigation, as documented in stunning fashion in this sworn affidavit by Juan Pablo Saenz and in this article by Rolling Stone magazine.

At one point, Chevron apparently floated an illegal $1 billion bribe offer to Ecuador's government (again, disguised in the form of a "donation") in exchange for extinguishing the legal claims of the indigenous villagers. At another, it offered Ecuador's government $700 million in "debt relief" for the same purpose. Wiki-leaks cables also show close collaboration between Chevron executives and U.S. diplomats in Quito to undermine the claims of the villagers. All of this is "soft corruption" in action.

Let's sum up what we know about Elaine Wood's and NOW's relationship to Chevron:

  • In 2012, just as the Ecuador case in the U.S. was heating up, Chevron suddenly gave its first donation to NOW's legal arm. Chevron's main outside law firm in the Ecuador matter also gave a large donation.
  • Shortly thereafter, NOW's legal arm submitted a legal brief for Chevron without disclosing its ties to the company.
  • The person who signed the brief, Elaine Wood, works for a consulting company that counts Chevron as a client. She is also not a practicing lawyer and is not on the staff of NOW's legal group.
  • Ms. Wood formerly worked in the same division of the U.S. attorney's office in Manhattan where Randy Mastro worked. Mastro is Chevron's lead outside lawyer on the Ecuador matter.
  • NOW's legal arm has refused to verify that it has disclosed all of the donations it received from Chevron or any of its related entities, including Mastro's law firm.
  • Ms. Wood should also disclose whether the work Alvarez & Marsal has performed for Chevron involves the company's campaign to evade its Ecuador liability.

Ms. Wood also should explain why she – the person at NOW with ties to Chevron – signed the legal brief alone. We are not familiar with the practice of a Board Chair writing a legal brief for her own non-profit organization when that organization has a staff of lawyers assigned to do that work.

Chevron has a long history of trying to "donate" to organizations so it can garner support that it would never receive organically. An attempt by the company to use one of its law firms in Canada to submit a "friend of the court brief" on a so-called "pro bono" basis recently backfired. See here for background.

The last time we looked, helping an oil major attack impoverished women in developing countries was not part of NOW's mission. Nor is failing to disclose conflicts of interest to federal courts.

Legal Momentum and its Board Chair have some explaining to do. We hope they step up and fulfill their obligations. NOW is a good organization. It deserves better from its leadership.

Chevron Will Lose Ecuador Pollution Case on Both Law and Facts

Reposted from The Huffington Post

Prediction: Chevron will lose the historic Ecuador pollution case on both the law and the facts, despite what you may have read in articles by U.S. legal reporters about the 20-year plus lawsuit.

In fact, you may think the Ecuadorians have lost already. They haven't.

If you care about the plight of indigenous people everywhere, you should consider another set of facts you haven't heard much about, at least in the U.S., and then make your own prediction.

Earlier this year, New York Judge Lewis Kaplan ruled the $9 billion Ecuador judgment against Chevron was fraudulent and not "collectible" anywhere in the world. In 2012, Judge Kaplan ruled it was not "enforceable" but the 2nd Circuit Court of Appeals quickly reversed him sending Chevron's lawyer Randy Mastro backed to the command center at his law firm Gibson Dunn, where job number one is to protect multi-national companies taking advantage of weak judiciaries and governments in poverty-stricken areas often populated by indigenous groups.

Photo by Lou Dematteis

A group of prestigious U.S. lawyers appealing Judge Kaplan's ruling for the second time argue blocking "collection" of a foreign judgment violates international law and comity (legal reciprocity) as much as blocking "enforcement" and are betting the 2nd Circuit reverses again, based on that argument as well as a host of others concerning jurisdiction, the improper use of the RICO statute and, importantly, the fact that Ecuador's appellate court conducted a de novo review of the judgment and upheld it, meaning the appellate court acted as if the case was being considered for the first time, without deference to the lower court's ruling.

It appears the oil giant is impressed with the Ecuadorians' arguments and is hedging its bet on victory, based on a footnote in Chevron's recent appellate court brief.

Fearing defeat on the law, Gibson Dunn's footnote 19 asked the 2nd Circuit to uphold Judge Kaplan's "facts" even if the court can't uphold his legal logic. You see Chevron believes it needs an affirming statement on its "facts" to prevent the Ecuadorians from enforcing the $9 billion judgment in Canada, Brazil and Argentina, where legal proceedings are underway to seize company assets. (Chevron has few assets in Ecuador.)

Whether such a statement will make a difference in another country's court system is up for debate but the Ecuadorians and their attorneys expect they will be allowed to counter Chevron's "facts" with their own set of facts – facts that were discounted, ignored or not allowed into evidence in Judge Kaplan's courtroom.

So let's compare facts.

Chevron's Story: Lawyers for the Ecuadorians Wrote the Judgment

The abridged version of Chevron's story goes like this: the lawyers for the Ecuadorians promised to pay the presiding judge in Ecuador $500,000 in exchange for writing the judgment.

The Big Problem(s) with that Story

What is Chevron's proof that this illicit bargain took place? To guarantee Chevron its Pyrric victory in his trial, Judge Kaplan ignored several big holes in Chevron's story, as did most legal reporters, including two who have gone on to write books about the case.

Big hole number 1: Where's the body?

Chevron never found the "ghostwritten" judgment on any computers, emails, jump drives or in the sock drawers of any of the Ecuadorians' attorneys even though the company had access to literally the entirety of their written and electronic files during the relevant time period.

Big hole number 2): Chevron's own expert said the company's "fingerprint" evidence of what it calls "ghostwriting" is "gobbledygook." See page 133 of this brief.

Big hole number 3): Chevron's one witness who claimed to know about the bribe is himself being paid over $1 million by Chevron in exchange for his ever-changing testimony. This witness, a former judge (Alberto Guerra), has admitted to taking bribes in 14 other cases in Ecuador over which he presided. See pages 52 to 57 of this brief.

What Chevron Does Not Have

Even though Judge Kaplan allowed Chevron complete access to all of Steven Donziger's written and electronic files, Chevron has not found a copy or draft of the Ecuadorian judgment on his hard-drive; nor have the 2,000 lawyers and legal assistants working on the case for Chevron found it in any of his emails.

Remember, Donziger is the lawyer Chevron claims had complete control over the "conspiracy" to "extort" the company. Also not found is any email exchange or reference to a meeting with the Ecuador judge or with his alleged associate Guerra (more about him later) during which the Ecuadorians' lawyers supposedly struck their bribery deal.

Quite the contrary, internal emails between members of the Ecuadorians' legal team, practically up to the moment the trial judgment in Ecuador was issued, demonstrate that: (1) they had no idea when the Ecuador trial court would issue a final decision; (2) they were concerned that their final submission to the court would not be finished in time; and (3) they believed that if they did not get their act together quickly and submit their final written arguments, the Ecuador judge might rule for Chevron. See page 13 and page 58 for some of these emails.

The "Fingerprint" Evidence

Chevron (and Judge Kaplan) knew they couldn't hang the entire fraud ruling on the testimony of the paid witness who had admitted to taking bribes, so they argued the Ecuadorians' lawyers left "fingerprints" on the judgment that corroborate Guerra's testimony.

Chevron claims various legal documents written by the Ecuadorian attorneys were not entered into the court record during the trial in Ecuador, yet language from them appears in the judgment. Chevron concludes that whoever wrote the documents wrote the ruling, not the Ecuador judge.

First, there's nothing wrong with language originally written by lawyers in a court case appearing in a final ruling. That occurs often in courts everywhere, including the U.S. Judges constantly adopt language submitted by lawyers in their briefs and expert reports in their final decisions. In fact, Judge Kaplan adopted Chevron's "facts" and arguments in his final decision. It would be suspect, though, if the language had never been entered into the record or given to a judge for him/her to consider.

But that's not what happened.

• Documents were introduced to the Ecuador court but for various reasons were not included in the Ecuadorian trial record: Excerpts from the so-called "Fusion Memo" represent the most substantially overlapping text that Chevron argues proves the Ecuadorians' lawyers wrote the judgment. It's a legal memo about a completely non-controversial topic: why Chevron was liable for Texaco's contamination after the merger in 2001.

The issue of "successor liability" was publicly and frequently discussed in the Ecuadorian proceedings. For example, at a court-supervised inspection of a Chevron well site on June 12, 2008, the Texaco/Chevron merger was discussed and all of the exhibits to the Fusion Memo were submitted and added to the trial court record. It is very likely that the actual memo was submitted as well, but it is possible it was not stamped as part of the official court record. The Lago Agrio proceedings were chaotic. There are many other documented examples of Chevron's submissions to the court not being made part of the official record. The fact that all of the memo's exhibits were submitted and marked, but possibly not the memo itself, provides a perfectly plausible explanation for why language from this memo found itself into the trial judgment.

Here is a summary of emails among the Ecuadorians' lawyers. See page 141 and footnotes 526 to 531 that discuss the Fusion Memo.

• Chevron did not search the actual trial record in Ecuador so it has no way of knowing whether the Fusion Memo is actually in the record. Chevron has never claimed that it searched the physical trial record from the Lago Agrio proceedings. The only people who seem to have searched that trial record – the appellate court judges in Ecuador – found most of Chevron's argument to be without merit and upheld the judgment against Chevron, rejecting the company's fraud claims. The Ecuador Supreme Court also upheld the judgment, bringing the total number of eight appellate judges who have ruled against Chevron in Ecuador.

• Chevron did an unreliable OCR review. An OCR (Optical Character Recognition) is a fancy way of describing an electronic scan of a document. Instead of reviewing the full original trial record, Chevron relied on what it claimed was electronic scans using the OCR method. The company claims the pages of the Ecuadorian trial record were first scanned as image files, then subject to an OCR review, which purportedly renders those image files text searchable.

The problem is that these image files – which were drawn from thousands of loose sheets of paper, some with handwriting scribbled on them, fastened together by rubber bands and stored in an Amazon courthouse – when submitted to OCR review, were scrambled, leaving most of the text un-recognizable. There were likely various reasons for this: the state of the papers (some of which were soiled), that some of the text was handwritten and difficult to read, and the presence of accents in the original Spanish. See pages 131-135 for more on Chevron's OCR review.

Even one of Chevron's own experts called the OCR review "gobbledygook." Here's an example:


Bottom line: Chevron had no way to know what was in or out of the Ecuador trial record. But that doesn't change the fact that any document submitted to be part of the record, but not officially recorded, can still be used by the court in rendering a judgment.

• Chevron's limited document-by-document review also was unreliable: Chevron did a limited document-by-document review of the scanned image files and submitted that document review as "expert testimony." There is no such thing. The limited set of documents that were reviewed – to prove that the overlapping text could not be found in the trial record – made up less than half of the Ecuadorian trial record.

For more details on Chevron's so-called "fingerprint" evidence, see pages 145-160 of this legal brief and pages 50-61 of this brief.

Paid-for Witness Testimony – Enter Alberto Guerra from Stage Left

Chevron's sole witness – the man who supposedly establishes the corrupt bargain between the Ecuadorians' lawyers and the Ecuador judge – is Alberto Guerra. It stretches the imagination – and breaks the limits of justice – that anyone would rely on his testimony.

• What Does Alberto Guerra (Hear) Say: It is important to be clear: Guerra admits that he was not present at any meeting when the lawyers allegedly bribed the Ecuador judge. Guerra testified the Ecuador judge, Nicolas Zambrano, told him that Pablo Fajardo (the lead lawyer for the Ecuadorians) had offered him (Judge Zambrano) money for the opportunity to write the judgment. (Judge Zambrano denied this accusation in sworn testimony.) This is called hearsay. And that is too kind – this is, at least, double hearsay. Hearsay evidence, of course, is not generally admissible in courts in the United States. This is another example of the "Kaplan exception" to the law taking hold in Chevron's favor.

• So why was Guerra involved at all: He wasn't present at the alleged "bribery" meeting with Judge Zambrano. Guerra did not negotiate the alleged "bribery" fee. He was not asked to write the judgment. So why was Guerra even involved? According to Guerra, he was going to be paid (between $100k and $200k, he can't remember which) by someone (he can't remember who) to basically fix typos in the judgment. That makes a whole lot of sense, right? I mean, if you are going to defraud a multi-billion dollar unscrupulous oil giant, what you would really want to do is include as many untrustworthy and extraneous people as you can in the conspiracy.

• How did Guerra come to testify: Guerra did not testify out of the goodness of his heart. Guerra is an admitted crook. He admits to paying and receiving 14 bribes, unrelated to the Chevron case, while working as a lawyer and a judge in Ecuador. He admits to soliciting payments from both Chevron and the Ecuadorians in this case. See page 53, footnote 14.

And he has received obscene sums of money and benefits from Chevron in return for his testimony.

Guerra claims he fears for his safety, thus justifying his political asylum. How about fearing prison for admitting in his Chevron deposition he had accepted 14 bribes in previous court cases? An all-expense-paid trip to America with a get-out-of-jail card was motivation enough to testify consistent with Chevron's narrative.

Strangely enough, Chevron's lawyers – including Miami-based Andres Rivero – tape-recorded some of the meetings where they tried to corrupt Guerra with suitcases full of cash. In these tapes, Guerra does not express fear of persecution – but he does express a desire for money. At one point, he asked Chevron's lawyers to "add a few zeroes" to their offer. Chevron's lawyers were all too happy to oblige and – in an almost cartoonish way – gave Guerra tens of thousands of dollars of cash and an offer of political asylum for him and his family. See here and here (pages 50-61)

All-in, Guerra will receive upwards of a $1 million from Chevron, if not more. This includes: housing, a car, furniture, monthly income, and legal immigrations services for his family provided by none other than the esteemed Ira Kurzbam, the former director of the American Immigration Lawyers Association. This might be a tempting offer for anyone, but it is truly an awful inducement for someone who is an admitted liar.

Guerra changes his story three times as evidence proves previous versions are false: Under questioning from Chevron, Guerra changed his story three times. First, he said the ghostwritten judgment was on his computer for him to edit. But he couldn't find it. Then, he said it was on a jump-drive, but he couldn't find the thumb-drive. Then, he said he edited the judgment on a laptop owned by one of the Ecuadorian attorneys. With each new story, he negotiated a higher fee from Chevron. He never was able to produce a copy of the judgment he said he edited on behalf of the Ecuadorians.

• Guerra submits evidence to prove he isn't lying this time: Guerra turned over to Chevron a daily planner, some shipping records and deposit slips to prove that, this time, he was not lying about anything.

Daily planner? This included a note about meeting with Zambrano nine months after the judge issued his final ruling. And Guerra claims he "lost" this planner the year he claims to have met with Donziger.

Shipping records? Neither Guerra nor Chevron offered any evidence authenticating records that supposedly showed Guerra delivered documents to the Ecuador judge. Guerra could have easily created the shipping records out of whole cloth. Chevron obviously had the resources to authenticate them from the shipping company, but chose not to. Take a look and decide for yourself.

Deposit slips? Again, Chevron submitted only copies of deposit slips showing payments into Guerra's account allegedly by a secretary for the Ecuadorian plaintiffs, not the originals. A normal judge never would have accepted them without authentication. The handwriting on the deposit slips looks very much like Guerra's handwriting in his daily planner. We believe Guerra created the deposit slips to jack up his payments from Chevron. In any event, the slips are so unreliable they never should have been accepted as evidence. Again, the "Kaplan exception" at work.

If Chevron wants to argue these "facts" in another court with unbiased judges – say in Canada, where the Ecuadorians are suing to seize Chevron's assets – I say bring it on.

In a court where a fair hearing of all the evidence is allowed – which was not the case in Judge Kaplan's courtroom – Chevron's "facts" won't be so convincing. I predict that in those courts and in the 2nd Circuit, both the law and the facts will remain on the side of the Ecuadorians.

Hall of SHAME? We Have a Winner!

Reposted from Eye on the Amazon

Vote Chevron for the Corporate Hall of Fame!
Please vote for Chevron in the 2014 Corporate Hall of Shame today!

There are many corporations worthy of being condemned for their actions that harm people and the planet, but none more deserving than Chevron. This company has reveled in its role as corporate criminal on the run from a $9.5 billion verdict against it in Ecuador for the deliberate dumping of billions of gallons of toxic wastewater into the rainforest. Chevron brazenly flaunts the fact that it will not be held to account by any court anywhere and will never stop fighting the very people who continue to suffer from its willful contamination.

As if that weren't enough to merit the shameful prize, Chevron's reputation goes well beyond the Ecuador disaster. Earlier this year simultaneous protests of Chevron's environmental and human rights crimes were held in 20 countries on five continents. Affected communities in Ecuador, Nigeria, Argentina, Romania and California called for solidarity and the global community has condemned Chevron.

Although Chevron was found liable after the most litigated case in the history of Ecuador, it refuses to pay. What's worse, instead the company has attacked the nation of Ecuador, its judicial system, and the very people it systematically poisoned. These baseless fraud accusations are only given any credence in the media because the company has spent hundreds of millions of dollars, not to clean up, but to hire lawyers and PR firms advocating that Chevron is "the victim." Really?!?

Most concerning is the fact that Chevron's method of dirty tricks and legal attacks is being lauded by corporate advocates seeking to silence critics speaking out about corporate abuse. This is precisely why Chevron's methods have been condemned by Amnesty International, The Sierra Club, Greenpeace, Avaaz, Rainforest Action Network, Corporate Accountability International and some 35 other human rights and environmental organizations. Over 250,000 people have petitioned the U.S. Senate to investigate Chevron's manipulation and abuse of the legal system that violates the First Amendment.

Chevron's legal attacks pose a severe threat to the rights to expression, association, political participation, and access to courts guaranteed by the First Amendment. If the corporation is permitted to use these methods against public interest groups and activists who engage in First Amendment-protected activities to seek to hold private parties accountable, democracy itself is threatened.

Chevron's actions pose THE biggest attack on corporate accountability efforts to date. That's why – more than any other corporation – Chevron deserves this award. Please vote for Chevron in the 2014 Corporate Hall of Shame today.