Reposted from The Chevron Pit
Fortune legal reporter Roger Parloff seems upset over Chevron's diminishing prospects of evading its $9.5 billion environmental liability in Ecuador.
We have written previously about Parloff's slanted reporting in favor of Chevron. For months, with no conceivable justification, he has refused to print our detailed letter to the editor pointing out the many flaws in his reporting about Chevron's claims of "fraud" in the Ecuador judgment.
Chevron's claims have been rejected by no fewer than eight separate appellate judges in Ecuador and six separate federal appellate courts in the U.S. But Parloff, relying on an outlier decision by an activist U.S. judge who already has been reversed on appeal in humiliating fashion, continues to stand by Chevron's claims.
Lest there be any doubt, Parloff this week outed himself as a full-throttled apologist for Chevron's human rights abuses in Ecuador. He also jumped on the Chevron bandwagon to help push the company's strategic "demonization" campaign against its main litigation adversary, New York human rights lawyer Steven R. Donziger. (An email in 2009 from Chevron public relations consultant Chris Gidez was explicit: Chevron's "long term strategy is to demonize Donziger.")
In defense of a deeply flawed book by his friend, reporter Paul Barrett of Businessweek, Parloff claims Donziger uses "mendacity" and "intimidation" to achieve his goals in holding Chevron accountable for dumping billions of gallons of toxic waste into the Amazon ecosystem. While an estimated 1,400 people have died of cancer in Ecuador courtesy of Chevron's dumping, it is none other than Donziger who Parloff claims should be thrown in jail.
Tellingly, Parloff is completely silent about Chevron's admission that in Ecuador it deliberately dumped 15 billion gallons of toxic oil waste into streams and rivers relied on by local indigenous groups for their drinking water. Or that the company repeatedly tried to sabotage the Ecuador trial, corrupt the evidence, bribe witnesses, and intimidate judges who would not bend to its will.
What Parloff won't tell his Fortune audience is how unqualified he and Barrett are to serve as judge and jury about the Ecuador matter or Donziger's role. Neither attended even a single day of the eight-year trial. Neither read the 220,000-page evidentiary record relied on by Ecuador's courts to find Chevron liable. Neither is familiar with the country's civil code. Neither will cite to Donziger's appellate brief (prepared by Deepak Gupta of the fast-rising Gupta Beck law firm) that rips apart all of Chevron's fallacious arguments.
Both also fail to mention critical information that does not fit Chevron's "demonize Donziger" narrative. This information includes the fact that two separate appellate courts in Ecuador unanimously affirmed the trial court judgment. And that the villagers are enforcing their judgment against Chevron's assets in four countries in one of the most important accomplishments of indigenous groups against the power of Big Oil in history.
Instead, Parloff and Barrett join Chevron's public relations firms in focusing on a minor and fabricated issue that is largely irrelevant to the underlying litigation. The particular issue, however, can be quite useful to damage Donziger's reputation before an American audience unfamiliar with a foreign legal system.
Parloff and Barrett claim that Donziger's role in having U.S. consultants prepare one of the 106 technical reports submitted to the Ecuador court was improper. The particular report in question – which Ecuadorian law experts say was prepared consistent with local practice as well as the methodology used by Chevron's lawyers – was discarded by the judge at the end of the trial. He concluded he did not need it to find Chevron liable given the overwhelming weight of the evidence against the oil company in the other 105 technical reports submitted.
No harm, no foul. Donziger and the Ecuadorian legal team stand by the report. Chevron disagrees. It doesn't matter.
Parloff also repeats the Chevron canard that Donziger bribed a judge. But that information came from a crooked witness to whom Chevron admitted paying an estimated $1 million in salary and benefits, including $48,000 in cash out of a suitcase in Quito. The witness changed his story to suit Chevron's needs each time the company paid him more money. See here for more of the disturbing details that point to witness tampering and possible criminal wrongdoing by Chevron.
To defend Barrett's dishonest book, Parloff continually cites to the only thing Chevron has left. That's the deeply flawed RICO decision by federal judge Lewis A. Kaplan. A former corporate defense lawyer, Kaplan seems unable to leave aside his obvious sympathies for the powerful when he takes the bench. We might also add that Kaplan is invested in mutual funds that own Chevron stock. Tellingly, he did not disclose this fact to the parties during the trial.
Kaplan turned over his New York courtroom to Chevron last fall for an abusive show trial where the company's army of high-priced lawyers turned their demonization campaign against Donziger into high art.
Chevron's case was preposterous from the get go. There was no legal basis for it, as Donziger's appellate brief makes clear. In a state of agita over its lack of evidence, Chevron dropped all damages claims on the eve of trial to avoid a jury. Kaplan repeatedly disparaged the Ecuadorian villagers, tried to meddle in Ecuador's judiciary, and refused to consider any of the extensive evidence of Chevron's contamination in Ecuador. He also treated every witness from the Global South like a second class citizen and worse.
Given that Kaplan reverse-engineered the result, his decision is highly likely to be reversed on appeal. That already happened with Kaplan's unprecedented decision in 2011 purporting to block the villagers from enforcing their judgment anywhere in the world. That provoked the ire of legal scholars from numerous countries and deeply embarrassed the federal judiciary. For detailed background on Judge Kaplan's latest abuse of the trial process, see this document.
Parloff and Barrett seem to have forgotten an important lesson. Those who live in glass houses should not throw stones. Particularly not at Donziger, who has proven himself to be tough as nails and has survived what is probably the most well-financed corporation retaliation campaign in history.
This retaliation campaign is funded, we might add, by an oil company that advertises in the very publications that sign the paychecks of Parloff and Barrett.
Like most trial lawyers, Donziger is far from perfect. But he rightfully is seen by many human rights advocates around the world as a role model. Donziger and his Ecuadorian colleague Pablo Fajardo found funders who helped them pioneer a new model of legal accountability for oil companies that had enjoyed virtual impunity. For two decades Donziger has worked alongside his indigenous clients to chase Chevron as it tries to run from the law.
The legal team has braved anonymous death threats and constant public attacks from the oil company and its allies. Donziger and Fajardo have been followed, harassed, and spied on by Chevron operatives both in the U.S. and Ecuador. Chevron has even extended its intimidation campaign to the lawyers in foreign jurisdictions.
As part of this intimidation model, Chevron has filed court actions against at least 100 supporters of the villagers as well as three separate funders. It also sued Ecuador's government in international arbitration to seek a taxpayer-funded bailout of its pollution. But the team remains undeterred.
The advocacy of Donziger, Fajardo, and others helped lead to the criminal indictment of two Chevron lawyers in Ecuador for fraud. The underlying case produced the largest environmental judgment ever against an American company from a foreign court.
Worst of all for Chevron, the Ecuador judgment came from the very court system where the company insisted the trial be held. In the 1990s, Chevron lawyers submitted 14 sworn affidavits to a U.S. judge praising the independence and fairness of Ecuador's courts. That was Chevron's position until the overwhelming evidence of its wrongdoing started to come in. Then the company switched gears and started to trash the very courts it previously had praised.
Parloff apparently forgets the meaning of "mendacity" and "intimidation" when applied to corporate misconduct.
Reporters – even those working for business publications – should not help corporations smear the people who held them accountable. But that appears to be the modus operandi for Parloff, Barrett, and Chevron: attack the lawyers and create a smokescreen to divert attention away from those responsible for the atrocities.
It's an awful litigation model that ultimately will cost Chevron dearly, as this blog post points out about BP's estimated $50 billion liability for its accidental Gulf of Mexico spill.
For some balanced and independent reporting on the case, one must move well beyond Parloff and Barrett.
We recommend this article published recently by Alexander Zaitchik in Rolling Stone, this 2007 article about Fajardo by William Langeweische in Vanity Fair, or watch this segment about Chevron's deliberate toxic dumping in Ecuador on 60 Minutes. For the human impact, see this compelling photo essay by Lou Dematteis in The Huffington Post documenting Chevron's cancer epidemic in the affected area.
These journalists provide a powerful counterpoint to Parloff and Barrett's zeal to defend a corporate polluter and cash in on its unethical demonization campaign.