Thursday, December 18, 2014

Chevron's 12-Step Program to Obtain Impunity for Its Crimes and Abuses in Ecuador

Reposted from The Chevron Pit

Why has Chevron still not paid up for its destruction of Ecuador's ecosytem after 22 years of litigation?

And why has Chevron still not paid a dollar directly to those affected by its pollution in Ecuador when BP voluntarily put up $20 billion to compensate victims within weeks of its much less impactful Gulf oil spill in the United States?

It is undisputed that Chevron deliberately dumped billions of gallons of toxic waste into the Amazon rainforest when the company (under the Texaco brand) operated in Ecuador from 1964 to 1992. Three layers of courts in Ecuador have confirmed that the oil gaint used substandard practices that decimated indigenous groups and caused health problems that have killed, or threaten to kill, thousands.

(For a summary of the overwhelming evidence against Chevron, see here.)

After an arduous eight-year trial, in 2011 the villagers finally won a judgment in Ecuador ordering the company to pay $9.5 billion to restore the environment and to provide clean water and appropriate medical care. Ecuador is where Chevron insisted the trial held and where the company accepted jurisdiction. The amount of the final judgment is modest compared to BP's estimated liability in the U.S., which has now grown to an estimated $50 billion.

We have tried to understand how Chevron has been able to snub its nose at the court judgment with so few consequences.

It certainly has much to do with how Chevron uses its vast wealth to pay hordes of lawyers from 60 different firms to tie up the villagers in courts stretching across countries and continents. Chevron's annual revenues are four times greater than Ecuador's GDP. Chevron CEO John Watson obviously calculates that it is cheaper to use lawyers to delay justice than to remediate the disaster.

There is also the larger threat to Chevron's business model. Ecuador is hardly the only country where Chevron faces significant liability for causing environmental damage in the communities where it operates. The last thing Watson wants is for other indigenous and farmer communities to get the dangerous idea that they can pursue their own legal claims against the company.

More interesting is why judges around the world can't seem to put a stop to Chevron's abusive strategy. Maybe the world needs a new global court to resolve civil disputes so powerful companies can't play national court systems against each other, as Chevron has done so effectively.

Whatever the solution, the system obviously is not working when the claims of vulnerable human rights victims cannot be resolved after an eternity of effort and untold suffering.

Here's our description of Chevron's 12-step program for impunity stretching back to the launching of the case in 1993:

1) Ecuadorian villagers sue Texaco in New York federal court in 1993 seeking a clean-up of the remediation and compensation for personal injuries. Texaco claims it should not be held liable because it operated in Ecuador via a wholly-owned fourth-tier subsidiary called Texpet.

2) Texaco and then Chevron (which bought Texaco in 2001) plead with a U.S. judge for nine years to move the case to Ecuador. The company files 14 affidavits praising Ecuador's judicial system and expressly agrees to jurisdiction there. The case moves to Ecuador.

3) On the first day of trial in Ecuador in 2003, Chevron goes back on its promise and claims the Ecuador court has no jurisdiction. Again, the company argues that it cannot be held liable because it operated via a wholly-owned fourth-tier subsidiary. The court rejects Chevron's argument.

4) When the trial evidence against Chevron mounts, the company sells its service stations in Ecuador and strips its remaining assets from the country. It vows never to pay any judgment and begins to threaten judges with jail time if they do not rule in its favor.

5) Chevron openly mocks the rule of law in Ecuador. Company lawyer Sylvia Garrigo tells 60 Minutes: "We don't want to be in any court, period." A Chevron lobbyist tells Newsweek: "We can't let little countries screw around with big companies like this." The company promises the villagers "a lifetime of litigation" if they persist in pursuing their claims.

6) Faced with the prospect of being held accountable in Ecuador, Chevron retaliates by suing all of the villagers and their lawyers for "fraud" in the same New York court where the company had blocked the original lawsuit in 1993. Chevron convinces a controversial (and very biased) trial judge to block the villagers from enforcing their judgment in the U.S. That decision is under appeal.

7) Subsequent to the filing of the retaliatory New York lawsuit, two appellate courts in Ecuador (including the country's highest court) unanimously affirm the judgment against Chevron. No fewer than eight appellate judges in Ecuador reject Chevron's claims of fraud.

8) Left with few options in their own courts, the Ecuadorian villagers are forced to file new collection lawsuits to seize Chevron assets in Canada, Brazil and Argentina. Chevron tries to defend these actions by seeking to have them dismissed on various technical grounds.

9) To fight the Argentina collection action, Chevron resorts to blackmail. The company successfully conditions a multi-billion dollar investment on the dismissal of the lawsuit. Chevron CEO John Watson visits Argentina and meets with President Cristina Fernandez de Kirchner to finalize the deal.

10) In Canada, Chevron claims its assets should be off-limits to the villagers because they are held by a wholly-owned Canadian subsidiary, Chevron Canada. While that issue is being litigated, the villagers cannot access Chevron's funds. Almost three more years pass.

11) Separately, Chevron sues Ecuador's government before a private arbitration panel seeking a taxpayer-funded bailout (by Ecuadorian citizens) of its pollution liability. By rule, the villagers are not allowed to appear to defend themselves. That litigation has been ongoing for five years with no end in sight while the three private arbitrators are making millions of dollars each in fees.

12) Chevron tries to cut off funding for the litigation by suing two financial supporters of the villagers in Gibraltar. Chevron is asking the court to issue rulings on the very same factual issues that already have been litigated and resolved by three layers of courts in Ecuador. The company also sues five lawyers and dozens of supporters of the villagers in an attempt to try to drive them away from the case.

Let's summarize some of the results of Chevron's 12-step "lifetime of litigation" strategy.

In Ecuador, there's virtually no Chevron assets to collect because the company sold them off anticipating it would lose the lawsuit.

In Canada, where there are $15 billion in Chevron assets, the company claims it is immunized because those assets are held by a wholly-owned subsidiary that Chevron controls completely.

In the U.S., a trial judge who refused to even read the evidentiary record from the trial in Ecuador has ruled that Chevron's assets are completely off-limits to the villagers.

In Gibraltar, Chevron has effectively tied up the funders of the lawsuit in personal litigation to distract their attention from enforcing the judgment against Chevron's assets.

Despite these Chevron-made obstacles, the oil company still faces a substantial risk that it will be forced to pay the judgment in full. Chevron is feeling sufficient pressure such that its representatives recently floated the idea of a three-party settlement that would include the government. But is is unclear if at this late stage a settlement would even be desirable for the communities.

As we have explained, the U.S. judgment is likely to be reversed on appeal in the coming months. That would open up the U.S. to enforcement actions.

In Canada, justices on the country's high court seem ready to order Chevron to stand trial to determine the validity of the Ecuadorian judgment. If a Canadian court recognizes the judgment, the assets of Chevron's subsidiary in Canada and those in other countries will be in play for potential seizure.

Chevron also faces increased global business risk stemming from its failure to abide by the law in Ecuador. There is a huge political backlash developing against the company in Latin America. Some details are in this article by a U.S. legal advisor to the Ecuadorians, Steven Donziger.

Chevron's strategy is also enormously expensive and has provoked regular challenges of CEO Watson from influential company shareholders. To defend against the pollution claims, Chevron has used at least 60 law firms, 2,000 lawyers, six public relations firms, and ten private investigations firms.

We estimate Chevron has spent at least $2 billion to try to grind down the villagers and their supporters. The company has paid at least $15 million to Kroll, the world's largest private spook company. Kroll admitted to running an espionage and intimidation operation against the lawyers for the villagers. It also admitted that it prepared at least 20 reports on Donziger's private life for Chevron's consumption.

Bottom line: Chevron's litigation abuse needs to stop. Courts around the world need to stand up to Chevron's harassment model and prevent it from litigating the same issues again and again.

The stakes are far greater than the outcome of this particular case. Chevron's blocking plan has profoundly negative implications for human rights victims and rule of law advocates everywhere.

No comments:

Post a Comment