Monday, December 30, 2013
Looking back on Chevron's retaliatory RICO trial, it is clear that the oil company's lawyers were so terrified of some of their own witnesses that they literally ordered them to stay away from court.
Remember Douglas Beltman and Ann Maest, the scientific consultants for the rainforest indigenous and farmer communities in Ecuador that were devastated by Chevron's toxic dumping? Beltman and Maest helped the communities win their historic judgment against Chevron in Ecuador's courts. The judgment recently was affirmed by Ecuador's Supreme Court.
Several months ago, desperate to evade a court order that it clean up its toxic mess, Chevron launched a public relations offensive in the U.S. that claimed Beltman and Maest had "disavowed" their work for the communities harmed by Chevron's pollution. In opening arguments in the RICO case in October, Chevron lawyer Randy Mastro touted Beltman and Maest as key witnesses against New York human rights lawyer Steven Donziger, the company's principal target.
So why did Mastro and his team of 114 lawyers at Gibson Dunn decide to bail on Beltman and Maest? And what does the sudden disappearance of these witnesses tell us about the validity of Chevron's RICO case?
Mastro knew that under cross-examination Beltman and Maest almost certainly would have delivered damning testimony against Chevron. As far as the case is concerned, Chevron's failure to call these witnesses underscores yet again how weak the company's evidence is – which is why Chevron dropped damages claims on the eve of trial to avoid a jury of impartial fact finders.
The most important of Chevron's witness desaparecidos is Beltman, a nationally-acclaimed scientist who in 2009 appeared in a 60 Minutes segment condemning the company's decades-long record of toxic dumping in Ecuador.
Last Spring, Chevron secured an affidavit from Beltman which the oil giant claimed shows he had "disavowed" his work for the communities and recanted his comments to 60 Minutes. In April 2012, with much fanfare, Chevron issued a corporate press release trumpeting Beltman's supposed retreat. As usual, the company failed to disclose key facts.
One of those facts is that Chevron had aimed a veritable bazooka at Beltman's head to get him to sign the affidavit. The company had named Beltman as a RICO defendant and threatened to bankrupt Stratus if Beltman didn't capitulate. Chevron sent a series of shakedown letters to clients of Stratus, falsely claiming that Beltman had been found to have committed fraud.
The reality is that Beltman never changed his opinion that Chevron is responsible for massive and life-threatening toxic contamination in Ecuador. Read this blog for more on the back story of Chevron's campaign of economic extortion to silence witnesses. Citing this evidence, 60 Minutes flat out refused Chevron's bogus demand that it issue a "correction" to the original story.
In exchange for Beltman's affidavit – clearly written by Chevron lawyers – Chevron dropped Beltman and Stratus as defendants in the RICO action. At the same time, Stratus agreed to drop a lawsuit against Chevron where the consultancy had accused the oil giant of engaging in a "an extrajudicial campaign of malicious defamation." Read the Stratus lawsuit to get a sense of how vicious Chevron's strategy had become.
The reason Mastro chickened out with his key witnesses is pretty simple. Beltman (and Maest) only "disavowed" their work on a single technical report that the Ecuador court excluded as evidence. Neither were involved in the more than 100 other technical reports that the Ecuador court relied on to find Chevron liable. In other words, the affidavits were a big non-event in terms of the trial.
They were a nice illustration of Chevron's venal tactics. Chevron did not want the court nor journalists to hear Beltman's truthful testimony, so Mastro squelched it. Beltman's real view of Chevron's bad acts can be seen in this PowerPoint presentation he prepared in 2010. Or read his sworn deposition testimony from 2011.
Nearly the exact same thing happened with another of Chevron's favorite witnesses, the American technical expert Dr. Charles Calmbacher. On the first day of the RICO trial, Mastro said Calmbacher was going to testify. But he also was a big no-show.
The reason: Calmbacher lied in a pre-trial deposition about disavowing his own court-ordered technical reports prepared for the communities. In fact, the evidence shows that Calmbacher found extensive toxic contamination at the former Chevron sites he inspected and he turned on the communities out of spite over a fee dispute. See pp. 53-55 of Donziger's sworn witness statement for the documentation.
Another of Chevron's disappearing witnesses, the Ecuadorian technical expert Fernando Reyes, signed a sworn affidavit earlier this year that was trumpeted by the company's PR flacks. But in his pre-trial deposition, Reyes undermined a key plank of Chevron's fake narrative by saying that it was normal in Ecuador for court-appointed experts to work closely with the parties. So Mastro, who ran the case like a public relations campaign, silenced him, too.
Other Chevron witnesses who were never called to court also include two of Donziger's former associates, Laura Garr and Andrew Woods. What happened?
Chevron stood nothing to gain once it got the public relations hit in opening arguments of falsely claiming the pair had turned on Donziger. You can bet that if called to the witness stand, both would have lauded Donziger for his commitment to his clients even if they griped on occasion about his demanding management style. So they were told to stay away.
Chevron always has used the RICO case to pre-package witness affidavits drafted by its own lawyers and then peddle them to Judge Kaplan and the media. In fact, these ghostwritten affidavits were central only to Chevron's public relations strategy to distract attention from its environmental crimes in Ecuador by "demonizing" Donziger and his clients.
Once the trial was on and the rubber had to meet the road, Mastro shuddered at the thought that any of the pre-packaged testimony might veer off-script. It's also why he abruptly aborted his cross-examination of Donziger, who was making the self-annointed former "mob prosecutor" look a bumbling fool who was lost in the weeds and could not frame a question properly.
Several months ago, a reporter at American Lawyer (Michael Goldhaber) declared the entire Ecuador case over after former Ecuador Judge Alberto Guerra signed a sworn affidavit claiming that the plaintiffs had bribed a sitting judge. Almost overnight, based on a Chevron-drafted affidavit, Guerra became Godhaber's new media sensation.
Unlike Beltman and Maest, Chevron had no choice but to call Guerra to the stand. His claims were just too important.
Under cross-examination, Guerra wilted. He admitted he was a criminal who had fixed dozens of cases and that Chevron was paying him (in violation of federal law) vast sums of money for favorable testimony. Guerra's show trial performance was a hilarious illustration of just how weak Chevron's case really is. Read pp. 31-41 of this post-trial brief to understand how Guerra's testimony is riddled with lies, inconsistencies, and constantly changing stories.
Guerra played Chevron for a fool, and Chevron played Goldhaber for a fool. And Mastro, a leader of a practice group that has been consistently nailed by courts for engaging in unethical litigation practices, keeps Chevron's false hope alive while billing CEO John Watson an estimated $400 million annually for services that have caused nothing but more and more risk for the company's shareholders.
Chevron is now left with precious little of long-term value for its huge investment in the RICO case. It still has trial judge Lewis A. Kaplan as the sole "Decider" of the case (at least before the appellate courts weigh in). But Kaplan is seriously lacking in credibility due to his xenophobic comments toward the Ecuadorians, his biased promotion of Chevron's cause, and his grandiose desire to serve as a de facto appellate panel for the Ecuadorian judiciary. Kaplan's expected decision in favor of Chevron will be laughed at by enforcement courts around the world and has little chance of surviving appeal in the United States.
Kaplan's hyperactive efforts to jump through tighter and tighter hoops to favor Chevron has been nothing short of astonishing to the world legal community. See this brief from international legal scholars, this brief from New York University law professor Bert Neuborne, and this post-trial brief in the RICO case to get a sense of the man's intellectual dishonesty and sheer arrogance.
John Keker, known as one of the most formidable trial lawyers in the nation who counts Google among his many clients, said in his recent motion to withdraw that Kaplan had allowed the RICO case to degenerate into a "Dickensian farce" due to his mismanagement of the docket and his "implacable hostility" toward Donziger, who has battled on behalf of the rainforest communities for two decades.
Chevron has played a cynical game of carrot & stick, manipulating witnesses with exorbitant payments (Guerra) or ferocious personal and economic pressure (Beltman and Maest). Team Mastro and the Lords running Chevron would never get away with it if the case were before a judge who wasn't clearly biased against the Ecuadorians and Donziger.
All of Chevron's testigos desaparecidos were people that the oil giant could not manipulate enough, compensate enough, or intimidate enough to be sufficiently complicit with its vicious intimidation campaign against the rainforest communities. And while the oil giant can apparently make witnesses lie, flip, or simply vanish, nothing can make the company's responsibility for suffering in Ecuador disappear.
Wednesday, December 18, 2013
Today, Amazon Watch – longtime advocates for the Ecuadorian indigenous and farmer communities affected by Chevron's toxic legacy – released a letter from a dozen prominent human rights and environmental organizations condemning Chevron's abusive tactics related to the Lago Agrio litigation.
In addition to decrying the abusive nature of Chevron's scorched earth legal, political, and media strategy in the case, it warns of the significant negative implications of Chevron's efforts to evade accountability for its devastation in the Amazon:
In a press release announcement Amazon Watch excerpts the sign-on letter:
"Chevron's actions set a dangerous precedent and represent a growing and serious threat to the ability of civil society to hold corporations accountable for their misdeeds around the world."
Besides Amazon Watch, signatories to the letter include such high-profile organizations as frontline human rights and environmental legal advocates EarthRights International, global climate change activist powerhouse 350.org, and eminent environmental movement stalwart Sierra Club.
Sierra Club Executive Director Michael Brune had this to say today:
"The people of Ecuador have a right to defend their families from oil industry pollution. Journalists have a right to expose the reckless practices that are destroying Amazon communities and ecosystems. Chevron's bullying tactics undermine those rights, and the Sierra Club supports the individuals and organizations that are standing up to Chevron's irresponsible corporate behavior."
Under headers highlighting some of the tactics Chevron has employed in an effort to evade accountability for its crimes in Ecuador, the letter outlines the way Chevron 'Attacks Free Speech,' 'Vilifies Critics,' and 'Undermines the System of Justice and Judicial Sovereignty.'Under this last header, the letter explains:
In a threat to the nature of national sovereignty and an independent judiciary, Chevron took the unprecedented step of attempting to use an obscure arbitration procedure under the mantle of the U.S.-Ecuador Bilateral Investment Treaty to nullify the ruling of a sovereign domestic court even though Ecuador was Chevron's chosen forum. This despite the fact that Ecuador was not even party to the 19-year court case as the plaintiffs were the 30,000 affected indigenous and campesino people, and the case itself began before the Investment Treaty was even signed. The affected peoples have no right to participate in the arbitration, which will be decided by three private lawyers, who purport to have the authority to overrule the Ecuadorian courts – raising threats to the sovereignty of justice systems around the world, which could be rendered powerless in the face of truly unlimited corporate power.
The dozen current signatories to the letter are currently circulating the letter, soliciting additional signatories, and conducting outreach to educate allies and colleagues working on human rights, environmental sustainability, and corporate accountability, among other key issues for which Chevron's tactics have profound implications.
Download the letter in PDF format here and click here to read Amazon Watch's press release announcing the letter.
Tuesday, December 17, 2013
Reposted from Eye on the Amazon
"Even before the Ecuadorian judgment was released, Chevron...said:
'We're going to fight this until hell freezes over. And then we'll fight it out on the ice.' Chevron's wish is granted."
– Justice James MacPherson, in today's decision.
Today the communities affected by Chevron's contamination in Ecuador achieved another victory in their epic battle for justice when an Ontario appeals court ruled they have the right to pursue enforcement of a $9.5 billion Ecuadorian court judgment against Chevron's estimated $15 billion in assets in Canada.
Amazon Watch attended the press conference in Ecuador this morning where Pablo Fajardo, lead lawyer for the communities along with other representatives, responded to the news.
"This order will allow us the opportunity to hold Chevron accountable for fleeing the scene of its environmental crimes in Ecuador after a valid judgment was entered against it," said Fajardo.
This decision is a major blow against Chevron and offers the potential for the Ecuadorian plaintiffs to achieve total victory over Chevron as its assets in Canada well exceed the $9.5 billion owed. Furthermore, within the court's decision was a jabbing comment aimed at Chevron's bogus RICO action in the US: "For 20 years, Chevron has contested the legal proceedings of every court involved in this litigation – in the United States, Ecuador, and Canada. Chevron even sought, and briefly obtained, a global injunction against enforcement of the Ecuador judgment."
As we have written several times here, Chevron's trumped-up RICO action, based entirely on the testimony of a corrupt judge who was paid $326k by Chevron, is its latest attempt to prevent enforcement and potentially influence other national courts to rule against the Ecuadorian plaintiffs. Canada's decision sends a clear message that peddling Judge Kaplan's verdict (expected to rule against the Ecuadorian plaintiffs) will hold no water in Canada.
Most terrifying for Chevron is likely this statement from the panel: "the Ecuadorian plaintiffs should have an opportunity to attempt to enforce the Ecuadorian judgment in a court where Chevron will have to respond on the merits." There's nothing worse for Chevron then having an authority review the actual facts of their deliberate acts of pollution over decades in the Ecuadorian Amazon.
Thursday, December 12, 2013
Reposted from The Chevron Pit
Now that the evidentiary phase of Chevron's retaliatory RICO bench trial against New York human rights lawyer Steven Donziger and his Ecuadorian clients is over, we can take a deep breath and analyze what really happened before the controversial Judge Lewis A. Kaplan. The answer is not much, other than one of the greatest abuses of the American civil justice system ever.
First, let's take a step back and look at what is undisputed. As Paul Paz y Miño of Amazon Watch wrote in his recent post at Eye on the Amazon blog, Chevron admits to dumping billions of gallons of toxic waste into Ecuador's Amazon when it operated in the country from 1964 to 1992 under the Texaco brand. A trial court decision finding Chevron liable for this dumping has been affirmed unanimously by Ecuador's Supreme Court. Since Chevron refuses to pay, judgment enforcement actions filed by the villagers continue to target billions of dollars of Chevron assets in Canada, Argentina, and Brazil. Chevron is also hamstrung by its longstanding promise to U.S. courts to pay the $9.5 billion Ecuador judgment as a condition of the dispute being moved to the South American nation in 2002.
For these and other reasons, we always have maintained that the RICO trial was more an expensive therapy session for Chevron's management team than a bona fide legal case. None of the key Ecuadorians named by Chevron as "defendants" even showed up. Given the bias of Judge Kaplan and the utter arrogance in the idea that a U.S. judge could rule on issues in the case already decided by Ecuador's Supreme Court, Chevron is likely to face a ferocious backlash from foreign judges if it tries to peddle Kaplan's ruling abroad.
Chevron's fundamental allegation was that it was treated unfairly during the trial. That's typical public relations blah-blah carted out after an oil company loses a trial lose fair and square. Chevron fought for ten years to move the underlying environmental case from the U.S. (where it was filed in 1993) to Ecuador. The company submitted 14 sworn affidavits to a U.S. federal court praising the fairness of Ecuador's courts. (It started attacking those courts only when the evidence at the trial pointed to its guilt.) Chevron recently won two significant legal cases in Ecuador against the state-owned oil company, PetroEcuador. The Ecuador Supreme Court just last month lowered the company's liability by approximately $10 billion, a draconian result for the long-suffering rainforest communities who have been waiting almost 50 years for a clean-up. That hardly sounds like the fix was in.
The RICO case is the most recent installment of Chevron's global forum shopping to evade accountability for its toxic dumping. The company has filed thousands of motions in more than 30 U.S. courts to try to undermine the Ecuador judgment. It also filed two claims against Ecuador's government in a futile attempt to shift its own clean-up responsibility to Ecuadorian taxpayers. It has attacked more than 100 supporters of the Ecuadorians, including bloggers and activists, with subpoenas seeking their private communications. It has dispatched powerful lobbyists, including former Clinton Administration officials Mack McLarty and Mickey Kantor, to pressure the U.S. government to cancel trade benefits for Ecuador. It also has hired six public relations firms to promote the fake narrative that the nation's third largest oil company is being victimized by indigenous groups who lived mired in its oil contamination. An internal Chevron memo from 2009 acknowledged the company's long-term strategy for Ecuador was to "demonize Donziger" and turn the tables on the villagers rather than litigate the case on the merits. That's the context for the RICO case.
Chevron wanted the underlying claims to be heard in Ecuador as long it felt it could engineer its desired outcome. In October 2003, company lawyer Ricardo Reis Veiga desperately tried to torpedo the litigation on the first day of trial by persuading the country's Attorney General to do something entirely unethical and illegal – call the trial judge to urge him to throw out the case that Chevron said it would litigate in Ecuador. Once judges in Ecuador began to resist Chevron's pressure campaign, the company high-tailed it back to the friendly confines of Judge Kaplan's courtroom where the activist judge was more than happy to grant a do-over. Almost everybody expects Judge Kaplan, who does not even speak Spanish, to rule in favor of Chevron based on his interpretation of Ecuadorian laws already decided by that country's highest court.
The RICO case remains a sideshow that Chevron is using to try to distract its shareholders and employees from evidence of its crimes, fraud, and human rights abuses in Ecuador – as documented in this stunning affidavit by Ecuadorian lawyer Juan Pablo Saenz or in this video or in this interview with Donziger on his website. But it is a stretch to think that any Kaplan ruling in favor of the oil giant will matter to the foreign enforcement courts who will decide under their own laws whether Chevron pays up. (By the way, Chevron can raise as a defense all of its so-called "fraud" evidence that it is using during the RICO trial in the enforcement courts.)
Chevron's trial of mass distraction before Kaplan also poses a different kind of threat to our body politic in the U.S. As Paz eloquently wrote in his blog:
Unfortunately, there's even more going on here than a Chevron-friendly judge misusing his power to the detriment of 30,000 long-suffering people in Ecuador. This is the furthering of a strategy that corporations will continue to develop to crush the free speech of critics and limit our chances to fight back on anything resembling a level playing field. This RICO suit and everything Kaplan has allowed Chevron to get away with in its wake is a serious threat to open society and due process of law.
In our recent analysis, Chevron's RICO Trial to Nowhere, we noted eight specific reasons why Chevron's case has little or no chance of holding up on appeal in the U.S. Besides the fundamental problem that Chevron failed to prove its case, there is also simply no remedy that any U.S. court can conceivably fashion to block a foreign court judgment. When there's no conceivable remedy, there's no "case or controversy" as required by the U.S. Constitution. And when there's no case or controversy, there should be no trial.
You won't be hearing about the flaws in Chevron's case from R. Hewitt Pate, the company's general counsel. With an air of smugness, Pate sat in Kaplan's courtroom for six weeks while collecting some of his $7.5 million annual salary. After strong-arming Chevron to invest astonishing sums in the RICO case, he no doubt wanted to be the man to spin the daily results to Chevron's Board of Directors and CEO John Watson. (Watson, who oversaw Chevron's purchase of Texaco without adequately vetting Texaco's pending Ecuador liability, has long been the target of shareholder ire over his mishandling of the litigation.)
Pate's effort to control the narrative before Chevron's Board and shareholders has to be pure jiu-jitsu. Here is a thumbnail sketch of Chevron's legal problems with the RICO case:
Kaplan has no remedy to help Chevron: Having denied a jury trial and excluded key relevant evidence that contradicts Chevron's narrative, Kaplan will no doubt "find" in favor of the company. But once that happens, there is no place to go. Under RICO, a private party like Chevron has no right to injunctive relief – a position the U.S. Department of Justice under the Bush Administration repeatedly asserted. Few judges would have the temerity to even think they could allow a law passed by Congress to bring down the Mafia to be twisted by a corporation to attack indigenous groups and human rights lawyers who held it accountable for its crimes. That's a rather scary assault on the very nature of political advocacy. The Second Circuit Court of Appeals in New York already ruled in 2012 that the Ecuador rainforest communities "may seek to enforce their judgment in any country in the world where Chevron has assets." Nothing that Judge Kaplan does can change that.
Kaplan cannot act as the appellate court for Ecuador's judiciary: It is an axiom of international law that judges in one country are not allowed to overrule court decisions of another country. In Ecuador, three layers of courts – most recently the nation's highest court – have upheld the trial court decision holding Chevron liable for dumping billions of gallons of toxic waste into the Amazon. Judge Kaplan knows almost nothing about Ecuador; he cannot even read the trial court decision or the record on which it was based. Yet Judge Kaplan has suggested that he plans to rule on the validity of Ecuador's entire judicial system as part of his grand plan. Doing so will look plain silly to the appeals court and even sillier to foreign judges being asked to enforce the Ecuador judgment.
Kaplan manipulated evidentiary decisions: Even after denying him a jury, Judge Kaplan would not let Donziger mount a real defense. He refused to admit evidence of the extensive contamination relied on by the Ecuador court to find Chevron liable. He excluded more than 100 technical reports from Chevron and other sources that documented high levels of Total Petroleum Hydrocarbons and other harmful toxins (such as lead, barium, zinc, and Chromium 6) at the company's 376 former well sites. This evidence was critical to show the Ecuador judgment was valid and not procured by fraud, as Chevron claims. Judge Kaplan also refused to hear evidence of Chevron's "unclean hands" – its crimes, fraud, and threats to judges and court personnel to sabotage the trial. It is a basic legal principle dating back centuries that the party that arrives in court with "unclean hands" is not entitled to relief. To deal with this problem, Judge Kaplan whitewashed the official record by excluding the extensive evidence of Chevron's "unclean hands".
Kaplan's temperament is not befitting a federal judge: We have reported extensively on Kaplan's displays of bias against Donziger and the Ecuadorians, including his comments from the bench disparaging Ecuador's judicial system and his preposterous claim that Donziger's goal is "to fix the balance of payments deficit" of the United States. See here, here, and here. During the trial, Judge Kaplan treated several witnesses from Ecuador with a conspicuous rudeness – threatening one with contempt if he did not turn over his computer to Chevron, using trick questions on another, and dismissing complaints about cultural insensitivity. Letting Chevron get away with its final act of trickery – dropping $60 billion in money damages claims on the eve of trial – was the ultimate betrayal of his oath to administer justice fairly. That allowed Chevron to avoid a jury of impartial fact finders, which very likely would have meant another devastating courtroom setback for the company. Kaplan then heaped insult upon injury by letting Chevron's staff use the jury deliberation room as a private office during the trial. Dropping a jury also means Chevron is going to be hampered by a decision from a judge with little credibility domestically and no legitimacy internationally.
Aside from the many legal problems, on the factual front Chevron's case is a paper tiger.
Once you strip away the flotsam, the company's supposed evidence of "racketeering" boils down to two main allegations: (1) that the Ecuador judge was bribed so that the plaintiffs could "ghostwrite" his decision; and (2) that a particular expert damages report submitted by Richard Cabrera was fraudulent. On both points, Chevron's allegations fall apart upon even superficial examination.
Testimony from Chevron's lying judge, Alberto Guerra: Guerra is an admitted liar who testified that he accepted as little as $200 to fix cases. Chevron paid at least $326,000 in cash and other benefits for his testimony, in violation of U.S. law that prohibits payments to witnesses. Chevron also hired Ira Kurzban, one of America's most well-connected immigration attorneys, to help secure political asylum for Guerra and his family even though Guerra faces no threat in Ecuador other than prosecution for his admitted crimes. In exchange for Chevron's money, Guerra offered a triple hearsay statement that the Ecuadorian lawyers bribed the judge – a charge denied by the judge himself. (Donziger never even met the judge nor saw him before he testified in Kaplan's court.) For more detail, see Donziger's motion to strike Guerra's testimony and this blog by Paul Paz. Bottom line: Guerra is another in a long line of Chevron witnesses bribed by the company to lie.
Ghostwriting: Chevron's allegation that the 188-page trial court judgment was not written by Zambrano is a joke. Chevron's two main experts on "ghostwriting" – Hofstra professor Robert Leonard and 28-year-old tech whiz kid Spencer Lynch – both failed to undertake the much-vaunted "authorship analysis" that could have compared Zambrano's judgment with his other publicly available decisions or writings to determine if they matched up. The fact that Chevron did not produce such a report is telling. Chevron likely did commission the study, but buried it when it did not turn out how the company had hoped.
The Cabrera damages report: One of 106 expert technical reports submitted into evidence, the Cabrera report was prepared in conformity with Ecuadorian law using the same methods Chevron's lawyers used for the preparation of their expert reports. (See pp. 46-53 of Donziger's sworn witness statement for a deconstruction of Chevron's fraudulent narrative regarding Cabrera.) In any event, the Ecuador court did not rely on the Cabrera report when finding Chevron liable. Instead, the court relied largely on scientific evidence of contamination proffered by Chevron's own experts (such as Ernesto Baca and Gino Bianchi), as Donziger explains in paragraphs 46 and 47 of his witness statement. The fact that Chevron's own evidence proved the case against it was reinforced by an independent study conducted by the Louis Berger Group in the United States.
Other Chevron "evidence" of racketeering is even more absurd. The fact that Donziger was an aggressive promoter of press releases that exposed Chevron's human rights abuses and corruption in Ecuador is basic political advocacy protected by the First Amendment. These tools of advocacy have been used by lawyers from Thurgood Marshall to Ralph Nader to Hew Pate himself, who loves to put out press releases. Similarly, Donziger's suggestion that two Chevron lawyers in Ecuador be criminally prosecuted for engaging in a sham remediation was entirely proper. Click here to read about how Chevron dropped a key plank of its RICO case to avoid the airing of evidence that would have proven the fraudulent nature of its so-called "remediation" in Ecuador.
Chevron of course will try to promote Kaplan's decision far and wide. The fact Chevron repeatedly tried to corrupt the Ecuador proceedings and manipulate the RICO evidence will not be mentioned by the oil giant. Meanwhile, it's business as usual in San Ramon and Lago Agrio. The indigenous uprising of the "so-called plaintiffs" in Ecuador is gaining ground around the world while the beleaguered Watson-Pate team digs in its heels.
Chevron needs to keep its corporate jets gassed and have its pilots at the ready. Pate and his entourage should keep their travel bags packed and ice skates sharpened. This battle is spreading.
Tuesday, November 26, 2013
Reposted from Eye on the Amazon
You likely already know that Chevron (as Texaco) admitted to deliberately dumping close to 18 billion gallons of toxic foundation waters into the pristine Ecuadorian Amazon over several decades (1964-1992). The company split from Ecuador in 1992, conducted a "remediation" proven to have been a complete sham, and got a $40 million "get out of jail free" card from the government of Ecuador (which specifically did NOT exempt them from any third party action). The results of their malicious acts to save just a few dollars per barrel? A wave of cancers and birth defects (incidentally, a Texaco engineer estimated in the 60's that about $4 million would cover the costs of building industry-standard lined waste pits but Texaco thought that was too costly) and a horrific health crisis that continues to this day.
In what is one of the most unlikely and significant victories in environmental and human rights history, 30,000 indigenous people and campesinos won a $9.5 billion judgment in a class action suit after 20 years of ugly legal battles (now upheld by Ecuador's highest court). Unlikely because of the unprecedented and overwhelming pressure placed on the plaintiffs, their supporters, Ecuador and the Ecuadorian judicial system. And significant as it sets an encouraging precedent that those victimized by powerful corporate forces have hope for justice and a way to fight back.
So how on Earth could this victory be so ridiculously, unethically and illegally turned on its head and evolve into the shocking display that just played out in a US Federal Court? And what repercussions and worrisome precedents could such reckless actions hold for corporate accountability and legal processes around the world?
I just spent most of the last two weeks in that New York City courtroom, where U.S. lawyer Steven Donziger and the Ecuadorian Lago Agrio plaintiffs found themselves accused of extortion and racketeering by the 3rd largest corporation in America. Chevron's sham trial will wrap up today, but thanks to Kaplan's inexplicable decision not to allow any testimony related to Chevron's contamination of the Ecuadorian Amazon – the actual issue here and disaster from which all this started – there's a lot that will never be discussed in the courtroom.
Unfortunately, there's even more going on here than a Chevron-friendly judge misusing his power to the detriment of 30,000 long-suffering people in Ecuador. This is the furthering of a strategy that corporations will continue to develop to crush the free speech of critics and limit our chances to fight back on anything resembling a level playing field. This RICO suit and everything Kaplan has allowed Chevron to get away with in its wake is a serious threat to open society and due process of law.
In 2010, before the Lago Agrio court had even issued a judgment (which Chevron now claims was "ghost written" by the legal team for the Ecuadorians), U.S. Federal Judge Lewis Kaplan had already made up his mind about the case. By issuing a worldwide injunction (later overturned by the 2nd Circuit Court of Appeals) Kaplan began a twisted journey through the looking glass and dragged the United States with him. Based on Chevron's trumped-up charges pieced together from edited Crude outtakes and thousands of emails between an international team constantly battling Chevron pressure tactics, Kaplan decided that a fraud had taken place and encouraged Chevron to file a RICO suit.
Kaplan has never been to Ecuador, knows nothing about its legal system and didn't even consider key evidence or hold a hearing to determine the facts. He doesn't even speak Spanish. His order, according to Professor Burt Neuborne, an extremely well-regarded human rights and civil liberties lawyer who is also the Legal Director of the Brennan Center for Justice at NYU Law School, "[sent] an unmistakable message of American judicial arrogance to the rest of the world that can only result in increased levels of reciprocal judicial suspicion and hostility, with negative consequences for the transnational rule of law."
There will more than a few law journal articles about what Kaplan has done here (much of which is in direct contrast to some of his prior rulings). But here are just a few highlights of the violations of civil rights and perversion of legal power Kaplan allowed or encouraged:
- Forced independent filmmaker Joe Berlinger to turn over more than 600 hours of outtakes despite protest from Leonardo DiCaprio, Woody Allen, Bill Moyers, Robert Redford, Mikhail Gorbachev, Michael Moore, the Academy of Motion Picture Arts and Sciences, and many others;
- Allowed discovery to include every single email in Steven Donziger's possession going back decades, including his private journal and all materials properly contained with attorney client privilege between him and his clients in Ecuador;
- Allowed unprecedented widespread discovery to include the communications of more than 50 other non-parties considered "co-conspirators" by Chevron, including Amazon Watch, Rainforest Action Network, Trillium Asset Management, among many others;
- Permitted testimony from Doug Beltman after Chevron's extreme economic and legal pressure on Stratus Consulting, threatened to destroy the company if they did not disavow their previous findings;
- Forced Ecuadorian citizen Donald Moncayo who appeared as a witness to turn over his computer and all his email within hours of taking the stand or suffer arrest.
- Permitted testimony from a witness who has received hundreds of thousands of dollars in compensation by the prosecution for his testimony.
Each of these pieces of Chevron's scorched-earth legal strategy is part of a specific approach to suppress free speech, scare off supporters, create and expand negative rumors, to divide and conquer the opposition. It's already been criticized by criminal defense lawyers familiar with RICO as a way to "send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct."
Even with Kaplan clearly on their side, Chevron does still have to do some of the work. There's a significant difference in the law between extortion by force and extortion by pressure. One allows a meritorious claim as a defense and the other doesn't. Yet, if the trial record does not allow for evidence of the reasons Donziger and the LAPs initially filed their suit – the toxic contamination – how can anyone make a judgment on whether their claims against Chevron have merit? Chevron has to affirmatively prove that the LAPs have no right to recovery, yet they never submitted any evidence related to the actual contamination.
If you cut through the theatrics that have little or nothing at all to do with the claims, Chevron is left with absolutely nothing more than a triple hearsay statement from an admitted liar and corrupt judge, who was paid more than $300,000 by Chevron for his testimony. There's not a single piece of evidence to prove in even the slightest that Judge Zambrano did not write the verdict. Everything Chevron has introduced has been done so to suggest that something nefarious happened without actually proving the claims. Mix that with Kaplan's attitude towards Donziger and all things Ecuador and you have a show trial and nothing more.
Even Kaplan himself appeared frustrated that Chevron's lawyers have not made his task easy by giving him a solid case to base his judgement upon. That is why they dropped the damages claim to ensure no jury would ever hear their case – they'd never swallow it. Nevertheless, most are confident Kaplan will complete the task he set out before the Lago Agrio judgment was even issued – he will hand Chevron a ruling they can tout to anyone who will listen.
It's no matter that it will not be based on the facts. No matter that it will not contain any evidence of actual extortion or illegal acts. No matter that it will be used expressly to violate the order of the 2nd Circuit Court of Appeals when they directed Kaplan not to act as an enforcement court.
Truth is stranger than fiction. These events would seem too outlandish to be true had I not witnessed them with my own eyes. And that is exactly what Chevron is hoping for. They will use Kaplan's verdict for years to come (though the verdict itself will inevitably be faced with legal problems that will likely cause it to fall apart quickly under appeal), and possibly spend billions more hoping empty words based on lies and manufactured "facts" will drown out the voices of the tens of thousands who continue to live with the harsh reality of Chevron's despicable acts in the Amazon.
Monday, November 18, 2013
Reposted from Eye on the Amazon
Donald Moncayo has been a friend and ally to Amazon Watch and a member of the affected communities in Ecuador dedicated to showing the world the truth of what Chevron (operating as Texaco) did to the rainforest in Ecuador. For eight years he has led "Toxi-tours" for journalists, environmentalists, elected officials and others to witness Chevron's destruction firsthand. Donald is no stranger to the foul smell and noxious contamination in Ecuador, but that wasn't enough to prepare him for the despicable treatment he would receive in a US federal court.
Last week Donald left Ecuador for the first time in his life after volunteering to testify in Chevron's sham trial in New York City. The trial where Chevron, the company that admits to deliberately dumping billions of gallons of oil drilling waters into the Ecuadorian rainforest, is suing the very victims of their own acts as extortionists.
I was in the courtroom with Donald. As a witness to the events last week, I will try to recount the bizarre scene I saw unfold. Unfortunately, we all felt powerless to stop a blatant abuse taking place right before our eyes. During a cross examination by Chevron's prosecution team from Gibson Dunn, Donald was asked repeatedly about instances where he saw a woman working in Judge Zambrano's office behind a computer. This woman, Evelyn Calva, typed the decision dictated by Zambrano – the decision that Chevron falsely claims was "ghost written" and which has now been upheld by Ecuador's supreme court. Donald knew Calva because she too had planned to testify for the defense in New York. During the course of explaining how he came to learn the identity of the woman he saw typing for Judge Zambrano, Donald openly shared that he had been in communication with a lawyer on the team in the US to discuss steps to submit his written testimony. The reaction to his statements by both the prosecution and the judge was as if Donald was revealing some nefarious plan. Yet, as as anyone who's ever even been to court knows, it's perfectly normal for lawyers to assist witnesses in preparing and submitting their statements.
As he has done on numerous other occasions Judge Kaplan then began questioning Donald himself – as if he were part of Chevron's legal team. He asked if Donald had sent emails to this "US lawyer" and Donald answered that he had. He was then told to reveal the email address of this lawyer in open court and Donald responded that he did not know the address by heart but that it was on his computer. At which point Kaplan said "Ah ha! And where is your computer now, Mr. Moncayo?" Donald responded that it was in his hotel room. Kaplan stood, gestured with his arm and open hand to Chevron's lawyer and said, "Mr. Brodsky..." at which time Chevron ate up everything that Kaplan had just handed them on a silver platter and declared they would like a subpoena Donald's entire computer.
With the exception of Chevron's legal team, the faces around the courtroom were in shock at this point. To call what was happening "highly irregular" is an incredible understatement. The evidentiary stage of this case was closed months ago. And for good reason – that is the proper process for trying a case.
However, within moments of mentioning an entirely benign and regular communication between legal counsel and a witness, the entire contents of Donald's computer were being sought by one of the most aggressive and unscrupulous legal teams ever assembled. In another absurd and unjust move, Judge Kaplan signed an order demanding the computer be delivered by 6 pm that same day. Donald didn't even have a lawyer to represent him. If he wanted to object to the order he was supposed to find one, in this land foreign to him, in less than two hours?
Then, to everyone's disbelief, the "U.S. lawyer" in question was identified in the courtroom and made to stand up as if she too had committed some unsavory act (Judge Kaplan didn't ask her what her email address is, although that was the pretext for seizing Donald's computer).
Kaplan made it crystal clear that he had absolutely no concern for the rights of this witness and many feel that his willingness to throw trial procedure out the window to get discovery from this one witness probably signified that he thought the prosecution had so little evidence to make their case that he wanted to try to find more. It supports Steven Donziger's statement that "Kaplan is not judging this case, he's prosecuting it." The only thing Chevron has submitted as evidence of any crime is a triple hearsay statement by an admitted liar – and that rankles Kaplan because he wants to win this case for Chevron.
In Kaplan's circus court, Ecuador's legal system and Ecuadorians themselves are treated with disdain and disrespect, so it's no surprise that Kaplan couldn't care less about Donald's rights. One lawyer with over 20 years experience trying cases expressed shock at the derogatory, sarcastic and demeaning treatment he received from both the lawyers for the prosecution and the judge himself. When Donald's lawyer (brought in at the very last minute) objected to the order and raised concerns about what implications there were for Donald under Ecuadorian law, Kaplan rolled his eyes and said, "he came into my jurisdiction with it. It's subject to my order."
But Chevron's lawyers were not satisfied with that order, they wanted to lick the plate clean, so once Donald was forced to give his laptop over he was told that he must also give them his email and password so that every email he has could be downloaded and produced to the court. Donald, a man who has been exposed to Chevron's dirty tricks and contamination in Ecuador was then told if he did not comply he would go to jail in the US. He stood helpless as Chevron's lawyers took his computer away in a car with technical experts and a lawyer representing Chevron.
Donald was devastated. He insisted on making his way to his lawyer's office in White Plains immediately to oversee the process. Upon his arrival, he was outraged to witness Chevron's legal team and technical experts attaching devices to his computer. Their work went on for over 10 hours while Donald stood by in anguish. To Donald this was nothing more than a complete violation from a company that has been besieging his community for decades and has proven they will stop at nothing to get away with their horrible crimes. Donald had absolutely no reason to trust this process. What if Chevron were planting something on his computer? What if they planted something on the copy to incriminate him or prejudice the case? After what Donald had seen with Chevron's dirty tricks with Borja and Hansen, scare tactics with the Ecuadorian military, and manipulation of Crude outtakes, Donald's fear of Chevron is justified by his experience.
Piguaje, who had already arrived, will probably testify this week, but no other Ecuadorians are eager to come and appear as witnesses in this case. And who could blame them? The intimidation and mistreatment by Kaplan and the abusive tactics of Chevron and Gibson Dunn have had a chilling effect on the case. The legal team and representatives of the affected communities in Ecuador are outraged and fearful of future treatment. Due to the actions of Kaplan, Ecuador has every right to view the United States judicial system as nothing more than an ally and enabler of corporate crime and injustice. It would not surprise me if Kaplan's unapologetic bias and mistreatment of Donald Moncayo does not end up becoming an international incident.
Tuesday, November 12, 2013
Reposted from Eye on the Amazon
I spent today witness to a circus that bore some passing resemblance to a court of law in New York City. On one side of the room, Chevron's army of lawyers sat snickering as Judge Lewis Kaplan's condescending tone morphed into moments where he actually stood up and questioned the witnesses as if he were completing the legal squad: Gibson, Dunn, Crutcher and Kaplan in cahoots. On the other side, a small team overwhelmingly outgunned – some volunteer – lawyers, human rights activists and Ecuadorian Donald Moncayo, who had never even left Ecuador before.
If you had any doubts as to the assertions that this is nothing but a show trial then today would have blown them all away. Time and again Judge Kaplan stood up and continued questioning witnesses after Chevron's pack of hyenas had presumably finished. With one exception, every objection by Gibson Dunn was sustained and every one by the Ecuadorians' legal team overruled.
Then before breaking for lunch, Judge Kaplan kept everyone in the courtroom to share with us his twisted math skills. In a statement with absolutely no relevance to the matters at hand, he wanted everyone to know that Ecuador's GDP is $84 billion and if Chevron paid the order of $19 billion it would be an influx of over 20% of their GDP (let's ignore for a moment that Chevron wouldn't be paying this money to Ecuador, but rather to over 30,000 private citizens). But he went on: the GDP of the US is about $15 trillion. So were this to happen in the US it would be like receiving $3 trillion – the amount of President Obama's budget. Why is this relevant? Or better yet, why not take it to its logical comparison: If Chevron did in the US what it did in Ecuador it would be like destroying an area of the size of Alabama in the United States.
Try to imagine an Ecuadorian oil company submerging Alabama in toxic wastewater and leaving it there for decades. Then when the people of Alabama successfully sued the company to pay for a cleanup, a random judge in Ecuador declares the verdict invalid and hauls, let's say, Judge "Faplan," author of the Alabama decision, into court in Ecuador and calls him a corrupt liar and says his ruling has no merit. If that seems insane, you're right. And now you're close to understanding the travesty of justice that we are witnessing here.
We've got some bad news for the real Judge Kaplan, though. Just hours after leaving court we learned that the Ecuadorian supreme court issued a final ruling in the actual case in Ecuador, upholding the Zambrano verdict. They did eliminate the previous verdict's "punitive damages" for not apologizing to the affected communities, however, given that this is not explicitly permitted in Ecuadorian law, which cut the judgment down to $9.5 billion.
Now Judge Kaplan has to do his math all over again.
Thursday, October 31, 2013
Reposted from Eye on the Amazon
Having virtually all the money in the world often means you can buy silence, you can buy time, and you can buy lies. Chevron has demonstrated this time and again in its decades-long battle to evade accountability for deliberately dumping 18 billion gallons of toxic wastewater into the Ecuadorian Amazon.
The problem is that this time what Chevron has bought is a bag of lies in the form of false testimony from a thoroughly disreputable source, and they aren't able to hide the price tag. In the ongoing saga of Chevron's scorched earth legal strategy, last week disgraced former judge Alberto Guerra testified in support of the company's most explosive allegations – that the judgment against Chevron was ghostwritten by the plaintiffs and that his efforts to seek bribes were partly on behalf of Judge Nicolas Zambrano, who issued the historic $19 billion final judgment in the Ecuadorian environmental litigation.
Somehow, Chevron expects the court (and the public) to believe that a man who has admitted to fixing cases and accepting bribes throughout his career as a lawyer and a judge is being honest this time, despite receiving hundreds of thousands of dollars from Chevron for his testimony. And everything depends upon his word, as the supporting "evidence" that he's presented is laughably incomplete (he claims that his computer died, and that's why he has essentially nothing to back up his story). For months Guerra worked with Chevron to prepare his testimony – and yet it was STILL full of gaping holes and contradictions. Amazon Watch was there in court and couldn't help wondering how anyone could take Guerra seriously. Of course, there's no jury in this trial – something Chevron worked very hard to guarantee – just a wall of stone-faced lawyers whose fat paychecks depend upon Judge Kaplan accepting Guerra's testimony as credible (or at least convenient).
It doesn't take a law degree to see that a man who's known for being a "liar for hire" and who has admitted that Chevron is paying him more than 20 times his prior salary is NOT a credible witness. But Chevron is operating in a legal realm of its own creation. It's one where you can sue the victims of your own environmental abuses, where you can prevent consideration of any actual evidence in the case, and now where you can pay witnesses whatever you like to give their "testimony" on your behalf.
These unethical maneuvers have not gone unnoticed by the legal community. Erwin Chemerinsky, a noted legal scholar and dean of the University of California Irvine School of Law stated:
"That Chevron and its counsel have crossed the line here cannot seriously be debated. If a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses. That is precisely what has occurred here."
The Ecuadorians have now moved that all of Guerra's fraudulent testimony be stricken. Remember, this was the best Chevron could do on this case. They know that they can't discuss the abundant evidence of their misdeeds – it still sits in toxic pools by the hundreds in Ecuador – so they've pinned their feeble accusations of a sinister conspiracy on claims of a corrupt legal process. I think they have managed to uncover some corruption, however. So when will Chevron and their legal team be brought before a court to answer for paying a confessed charlatan to commit perjury?
Wednesday, October 30, 2013
Reposted from The Chevron Pit
Today, the legal team for Steven Donziger and the Ecuadorians targeted by Chevron's retaliatory RICO suit filed a motion – filled with devastating detail – to strike the testimony of the oil giant's star witness.
That star witness, disgraced former Ecuadorian Judge Alberto Guerra, testified during the RICO trial last week that representatives of the Lago Agrio Plaintiffs secured the opportunity to ghostwrite the 2011 judgment against Chevron issued by the Ecuadorian court by promising the presiding judge $500,000.
Well, I guess Chevron can rest its case. Silver bullet. Or, more like magic bullet.
One of the main problems with the story – besides the fact that it never happened – is that after weaving his tall tale, Guerra admitted that he had offered between ten and twenty bribes to judges during his career as a lawyer and after becoming a judge, accepted about the same number of bribes, sometimes for as small as $200, to "fix" cases.
But it gets worse, at least for the credibility of his fanciful testimony. From today's motion:
Guerra further understood from multiple conversations and lunch meetings with Chevron attorneys – where, as Guerra's testimony revealed, they always fully heard out his offers and consulted with their principals before allegedly saying "no" – that as an out-of-work former judge with no role in the case, he simply didn't have the "goods" Chevron wanted. Guerra had every incentive to manufacture those goods so that he could bargain hard with Chevron about the price of his testimony. And bargain he did, lying repeatedly to Chevron – i.e., that he was in possession of emails that would confirm Chevron's ghostwriting allegations; that he possessed drafts of the Judgment; that the Lago Agrio Plaintiffs had recently offered him $300,000 to cooperate – in order to improve his bargaining position.
Okay, so the guy is an admitted liar and criminal but you know, maybe he's telling the truth now. What incentive could he possibly have to make up a new story now? Back to the motion:
When, after a long career of paying and accepting bribes, Guerra apparently decided that he would place himself in the service of Chevron, the former judge was earning $500 per month and had no savings. In contrast, Chevron has committed to paying Guerra, for a period of at least two years, a "salary" of $10,000 per month – 20 times more than he was earning in Ecuador. It is unclear what need Guerra has for such a generous salary, in light of the fact that Chevron also: (i) provides Guerra with a monthly $2,000 "housing allowance"; (ii) bought Guerra a car and is paying for his auto insurance; (iii) is paying for health insurance to cover Guerra, his wife, his son, his son's wife, and his grandchildren; (iv) paid Guerra roughly $12,000 to purchase household items upon his move to the U.S.; (v) paid Guerra's moving expenses, including five airline tickets, transportation of personal items, and a temporary hotel stay upon arriving in the U.S.; (vi) paid Guerra roughly $50,000 in exchange for "evidence," including $10,000 for belatedly finding a single document that supposedly eluded Guerra upon prior searches because it was "stuck" to something else; and (vii) pays the legal fees of Guerra's various attorneys, including the fees of the lawyers handling immigration issues for his various family members. Guerra's relocation on Chevron's dime also reunited him with his daughter and a second son, who live in the U.S. and who Guerra had not seen in several years.
In other words, Chevron is bribing a judge to say that Donziger bribed a judge.
And the package Chevron has put together for this judge is outrageous, and egregiously runs afoul of federal law and ethical rules of conduct.
The motion outlines how the payments violate the federal Anti-Gratuity Statute as well as the Rules of Professional Conduct of New York, where the trial is taking place. By all means, read the motion for a detailed explanation of the rules but here is the view of prominent legal scholar and law professor Erwin Chemerinsky in a sworn declaration for the Defendants:
"if a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses."
And the conclusion of the motion on the payments to Guerra?:
The bottom line is that Guerra is and apparently always has been desperate for money, and will stoop to extraordinary lows to get it – including fabricating a story for Chevron, weaving big lies with small truths in an effort to create the illusion of a verified account. Guerra's recent testimony only serves to drive his unreliability home.
The motion is well worth reading in its entirety as it also highlights the admitted lies, the contradictions, and the suspect assertions in Guerra's testimony, as well as the total lack of anything approaching corroborating evidence for his explosive allegations.
During cross-examination, Guerra explained that he spent 3-4 days of every week for 3 full months in New York working with a team of Gibson Dunn lawyers led by Randy Mastro in preparation for his two days in court. That should be enough time for even a novice actor to learn his lines, no matter how fanciful a story he's telling.
And hey, if it means reuniting with his beloved family in the United States, where he'll enjoy a lifestyle he could only dream of before, it's time well spent. And then some.
And for Chevron?
Simple. Guerra's testimony is Chevron's "magic bullet" to save its RICO case and help the company avoid paying the $19 billion judgment for its devastation of the Ecuadorian Amazon.
If it worked, it would be money well spent. And with a biased federal judge presiding, it probably will work – until a real court, the Second Circuit Court of Appeals, reviews the matter down the road.
Never mind that the money spent on bribing Guerra to fabricate his story could be used to clean up the company's contamination in Ecuador. But for Chevron, living up to its legal and moral responsibilities overseas would set a terrible precedent.
In the end, Guerra's preposterous testimony, bought and paid for by Chevron, his court performance the culmination of months of preparation by a team of highly-paid lawyer-thespians at Gibson Dunn, adds one more layer of absurdity to the farce that the current proceedings represent. A single federal judge in New York can no more act as an appellate court for the entire Ecuadorian Judiciary than Alberto Guerra's words can be taken as the truth. And Chevron can no more hide from the truth than the company's legal machinations can conceal its contamination, and its liabilities, in Ecuador.
Friday, October 18, 2013
Reposted from EarthRights International
Every day, human rights defenders around the world risk their lives to stand up against injustice. Whether investigating government abuse in Syria or Russia, or exposing corporate abuse in Nigeria or Ecuador, brave individuals everywhere depend on fundamental rights of free speech to do their work. The United States has always celebrated such rights as vital to our democracy—after all, there is a reason that the First Amendment came first. Yet recent trends, bolstered by a series of federal and Supreme Court cases, have privileged the free speech rights of corporations while silencing the living, breathing human beings that need those rights most.
It’s certainly no news that today’s corporations enjoy unprecedented global power. Likewise, the corporate lobby’s campaign to stifle human rights activism has been steadily increasing. Since Citizens United, which extended First Amendment rights to corporations as “persons”, we’ve seen bold legal arguments against laws and regulations that would hold them accountable to fundamental human rights law. This year, for example, the Supreme Court held in Kiobel v. Shell that Nigerian survivors of torture and crimes against humanity could not seek justice against Shell in U.S. Courts. The “mere corporate presence” of Shell in the U.S. was not enough for the Court to allow the plaintiffs—lawful residents of the U.S.—to bring their case. Courtroom doors that have been open to the world’s powerless for over 30 years are now closing thanks to a concerted effort by the most powerful.
Yesterday, the Supreme Court heard arguments in a case that could push this dangerous precedent even further. Largely outside the radar of the human rights community, DaimlerChrysler AG v. Bauman arises out of the company’s alleged participation in targeting labor activists in Argentina’s Dirty War, a period of terror that involved the murder, torture and disappearances of thousands of activists and political dissidents. The allegations are chilling: Mercedes-Benz Argentina identified workers within its plant as “subversives” to state security forces, knowing full well that, as a result, those workers would be abducted, tortured, murdered or “disappeared”. Equally chilling is the prospect that the Supreme Court will enshrine corporate rights over human rights in law once again. Like Shell in Kiobel, the question is whether the German company is legally present in the U.S. for purposes of jurisdiction. Daimler says that it has a constitutional right to be treated separate from its subsidiaries. Where that right exists in the constitution is up to anyone’s imagination.
Unfortunately, it’s not just the Supreme Court that’s privileging corporate rights over human rights. The American Petroleum Institute (API) sued the Securities and Exchange Commission (SEC) earlier this year, arguing a First Amendment right to make secret payments to foreign governments. The case concerned Section 1504 of the Dodd-Frank Act which would require oil, gas and mining companies to disclose the payments they make to foreign governments, making this information available to the people living in resource-rich countries for the first time. Such transparency regulations prevents corruption and promotes human rights, not least access to vital information that citizens in resource-rich countries require to demand accountability from their own governments. Yet the API argued that the First Amendment allows them to conceal such payments, and the SEC is now revising their rule.
Finally, we have seen the rise in SLAPP (Strategic Litigation Against Public Participation) suits by corporate defendants against the human rights attorneys and NGOs that have advocated against them. Perhaps the most extreme, but certainly not the only, example of this has been the tactics that Chevron has employed this year against all advocates criticizing their human rights and environmental abuses in Ecuador. Faced with an $18 billion judgment against it for environmental devastation in the Amazon, Chevron has relentlessly targeted the organizations, lawyers, journalists and activists who have campaigned or publicly spoken out about the company’s destructive operations in Ecuador. In spite of sanctions and other judicial admonishments, Chevron’s lawyers have continued to SLAPP activists with harassing subpoenas and depositions, undoubtedly aimed at chilling the future First Amendment activity that makes their company look bad. EarthRights has defended these organizations, like Amazon Watch, but in spite of successful defense, Chevron’s legal machine continues these abusive practices.
Sadly, these cases are not new or unique. Human rights advocates have always faced an uphill battle, especially when taking on corporate abuse. What is new is the way in which our highest courts are privileging corporations and their rights over those of actual human beings. SLAPP suits and corporate tactics aimed at discouraging human rights advocates from speaking out and demanding justice are time-tested. But the aggressiveness and vigor with which Chevron has been allowed to pursue such tactics is new, and other corporations are following suit.
We must ask ourselves this question: How can we speak truth to power when those with power have more rights to speak?
Wednesday, October 16, 2013
Reposted from The Chevron Pit
On the very second morning of the trial in Chevron's retaliatory RICO suit, one of the oil giant's star witnesses dropped a bombshell.
And the star witness – Chevron's own Ricardo Reis Vega, the company's vice president who oversaw its legal defense in the Ecuador case – dropped that bombshell on another of Chevron's star witnesses.
With the courtroom packed with people who mostly already knew about the incident, the major revelation drew little response except some frantic scribbling in notebooks and whispering in the dark-suited, shoulder-to-shoulder Chevron seating section.
For those of you who haven't been closely following the tortuous grind of this case, Reis Veiga's admission is substantial and eviscerates the credibility of the witness Chevron is relying on to support its most explosive – and ridiculous – allegations in the case.
Reis Vega was asked if he had personal knowledge that in 2009, the disgraced former judge in the case in Ecuador, Alberto Guerra, approached Chevron, promising to "fix the case."
Reis Vega replied, simply, "Yes, I do."
Chevron is promising that Judge Guerra – who the company admits offered to "fix the case", will be its star witness in Chevron's trial. He is expected to say that the Ecuadorian plaintiffs' legal team offered to bribe judges, an outrageous claim they vigorously deny. Judge Guerra has in fact been paid more than $325,000 by Chevron, in some cases by lawyers toting suitcases in cash. Who is bribing whom?
While this all sounds hyperbolic, unfortunately it is not, and it will be corroborated soon enough in court.
Read this Motion for Terminating Sanctions filed last month for more information on Guerra's total lack of credibility.
Tuesday, October 15, 2013
Reposted from The Chevron Pit
Today in a New York Courtroom, Chevron's campaign to evade accountability for its environmental and human rights abuses in Ecuador officially enters a new, egregious, ridiculous stage.
This morning, in Judge Lewis Kaplan's courtroom on the 21st floor of the Daniel Patrick Moynihan U.S. Courthouse in New York, Chevron's team of lawyers assembled on one side, while long-time advocate for the Ecuadorian rainforest communities, Steven Donziger and his team assembled on the other. Some journalists and supporters of the fight to hold Chevron accountable filled out the courtroom and fidgeted, while waiting for whatever would come next.Missing from the courtroom as Judge Kaplan called the first day's hearing to order was Javier Piaguaje, Secoya indigenous leader from the community of San Pablo, deep in the Ecuadorian Amazon. He has consistently rejected the New York court's jurisdiction but traveled here to represent the thousands of Ecuadorian victims of Chevron's pollution who are being victimized even now by Chevron's ongoing scorched earth campaign to crush their righteous fight for justice.
Earlier in the morning, Javier stood beneath the Flaming Sword of Justice Monument to briefly address a large crowd of people gathered in Foley Square; members of the Ecuadorean community in New York, and supporters of human rights and the environment who came out in solidarity.
High above Foley Square, Judge Kaplan began the proceedings without a single representative from the affected Ecuadorian communities. A few minutes later, finally, Javier joined Steven in the courtroom, along with their lawyers. Javier had been delayed by long lines at the entrance check-point; security was tight for the high-profile arraignment of a terror suspect.
But as the proceedings continued, the scene grew only more bizarre.
In its opening statement, Chevron failed to mention a single element of law against the Ecuadorian defendants. It seems clear that the court has no choice but to dismiss the entire matter against the Ecuadorians.
In fact, Chevron's opening statement displays an absolute obsession with Donziger, but an utter lack of legal basis to proceed in the show trial now underway. Chevron even failed in its opening statement to suggest any sort of relief they may be seeking from the court, suggesting they don't have a legal basis for relief.
At the outset, besides the overarching fact that this whole RICO case is merely a weapon of mass distraction designed to explode the landmark verdict won by the Ecuadorian plaintiffs after one of the most litigated environmental cases in history, Chevron's case has a couple obvious major problems from a legal standpoint: the company can't meet the elements of law, and there's no relief available anyway.
Reposted from Eye on the Amazon
Today in New York Ecuadorian villagers from the Amazon rainforest region ravaged by Chevron's oil contamination were joined by supporters for a rally in Foley Square across from the courthouse where a trial opened in the California-based oil giant's retaliatory RICO lawsuit against the Ecuadorians and their U.S.-based legal advocates.
The Ecuadorians are representing 30,000 plaintiffs who won a landmark judgment against Chevron in an Ecuadorian court in 2011 in which the company was ordered to pay more than $18 billion for cleanup of widespread contamination, as well as compensatory and punitive damages. The case holding Chevron accountable for toxic dumping by its predecessor company, Texaco, has been upheld by appellate courts in Ecuador.
After nearly 20 years since the case was filed in 1993, Chevron still refuses to pay for a cleanup and is waging a scorched earth legal, PR, and lobbying campaign to crush its victims and their advocates and supporters. The oil giant stripped its assets from the country, forcing the Ecuadorians to pursue enforcement of the judgment in countries where the company maintains assets.
While Secoya indigenous community leader Javier Piaguaje continues to contest that the New York court can assert Personal Jurisdiction over him, he has traveled to New York to represent the tens of thousands of Ecuadorian plaintiffs who couldn't be there and defend them against Chevron's insulting allegations. He had this to say outside the courthouse in Foley Square today:
Forty-seven "named plaintiffs" – all of them indigenous rainforest residents and rural villagers – have been named in Chevron's lawsuit, which alleges that the entire case is a conspiracy to extort the company. Two of the Ecuadorian villagers, while rejecting the New York court's jurisdiction over them, have nonetheless appeared in the case in order to fight the allegations. Fearing a public backlash for suing victims of its pollution, Chevron has focused its smear campaign on New York-based human rights attorney Steven Donziger, who has advised the Ecuadorians in their efforts since first visiting the contaminated region in 1993.
The Ecuadorians and their supporters have called for an end to Chevron's retaliatory lawsuit, and are calling this latest effort a "rigged show trial" before a federal judge, Lewis A. Kaplan, who has displayed outright hostility to the Ecuadorians' legal efforts to demand a cleanup. Judge Kaplan has also made repeated disparaging on-the-record comments about Ecuador's judicial system.
Texaco operated in Ecuador until 1992, and Chevron absorbed the company in 2001, assuming all of its predecessor's assets and liabilities. Chevron has admitted to dumping nearly 16 billion gallons of toxic wastewater – the byproduct of oil drilling and pumping – into rivers and streams relied upon by thousands of people for drinking, bathing, and fishing. The company also abandoned hundreds of unlined, open waste pits filled with crude, sludge, and oil drilling chemicals throughout the inhabited rainforest region. In other countries at the same time as it was operating with no environmental controls in Ecuador, the company re-injected wastewater and used other easily-deployed technologies to deal with the toxic byproducts of its activities.
Multiple independent health studies have shown an epidemic of oil-related birth defects, cancers, and other illness. It is estimated that the contamination has directly led to at least 1,400 deaths.
For more on the campaign to hold Chevron accountable for its abuses in Ecuador: ChevronToxico.com
For more on the impending trial in Chevron's retaliatory lawsuit: StevenDonziger.com
Reposted from Eye on the Amazon
The Gambino crime family. The Chicago outfit. The Latin Kings. You've probably heard of these infamous crime families, a.k.a., the mob. The mafia. "Don" Corleone. Capiche?
But have you heard of Hugo Camacho? Or Javier Piaguaje? They're not exactly household names. Nor gangster names for that matter. And that's because one is a campesino farmer that makes about $200 a month growing cacao. The other is a leader of the Secoya indigenous people, and both are from the rainforests of Ecuador's Amazon. Their crime? Suing the second largest oil company for the worst oil-related environmental disaster on the planet. And winning.
But starting today in a lower Manhattan courthouse, they are being accused of using the same criminal statute under which the big crime bosses of our time have been prosecuted: RICO (Racketeer Influenced and Corrupt Organizations Act). It's the latest in Chevron's scorched earth campaign to avoid paying a record environmental verdict against the company for massive contamination stemming from its operations in Ecuador's Amazon between 1964 and 1990.
The implications of Chevron's tactics are immense and should send shivers down the spine of anyone concerned about justice, human rights, the environment, or corporate responsibility. The U.S. oil giant has taken "blame the victim" to a new extreme in its attempt to avoid the $19 billion guilty verdict handed down by an Ecuadorian court in February 2011. Upheld on appeal, the verdict was based on much of Chevron's own evidence, and in a forum of Chevron's choosing. Chevron has no assets in Ecuador, and has thumbed its nose at the verdict, adding insult to injury for communities who have sought a clean up, clean water, and funds for health care for 18 years. The affected communities are now forced to pursue Chevron assets around the globe in order to get the justice they deserve.
Piaguaje, Camacho, and some 30,000 others first brought their lawsuit in 1993 in New York, using the Alien Tort Claims Act, a little-known law from 1789 that originally provided a forum for victims of transnational pirates in the home country of the pillagers. The case was brought in the state of New York because there, in White Plains, Texaco Petroleum Company developed an oil production system for its operations in Ecuador intentionally designed to pollute. Texaco calculated that, by using out-of-date technology and deliberately violating industry standards, it could save a couple of dollars per barrel.
And pollute it did. Unlike a one-time spill such as the Exxon Valdez or BP Horizon spill in the Gulf of Mexico, Texaco's operations were systematically drilling and dumping 24/7 for almost three decades. Over those 28 years, it spilled some 18 billion gallons of toxic wastewater, and roughly 17 million gallons of crude. The region, once a pristine tropical rainforest and an idyllic home for five indigenous groups, became a wasteland of superfund-worthy waste pits, gas flares, hundreds of miles of oil-covered roads and zigzagging pipelines, and flow lines that dumped toxins directly into streams and rivers that local communities used to drink, bathe, fish, and wash their clothes.
The company turned over operations in 1992 to state-run oil company Petroecuador. Given that the company's former concession – an area the size of Rhode Island – was an environmental free-fire zone and people were sick and dying, communities there filed suit. Texaco hoped to make it go away by conducting a sham "clean up", which was little more than pushing dirt on top of open waste pits. Chevron bought Texaco in 2001, and assumed what was a known and growing liability. Chevron, as Texaco had for almost a decade, argued before New York courts that the case belonged in Ecuador, hoping to take advantage of its tremendous political sway over right-wing, business-friendly Ecuadorian governments. It submitted 12 affidavits attesting to the transparency and independence of Ecuador's judiciary. In 2002, a judge remanded the case to Ecuador, and bound Chevron to abide by Ecuadorian jurisdiction and any decision that came from Ecuadorian courts. However, after plaintiffs refilled in 2003, Chevron immediately claimed Ecuador had no jurisdiction over the company. It met with government officials on ten different occasions trying to pressure Ecuador to quash the case, which the government rightly resisted given it's a suit brought by private citizens.
After almost ten years of litigation and more than 100,000 soil and water samples, Chevron was found guilty and ordered to pay $19 billion in damages. But here's the catch: Chevron knew from the get-go that it had an escape route. When the Second Circuit Court of Appeals for New York remanded the case to Ecuador, a caveat of Chevron's compliance with any judgment was if any type of fraud occurred. And that is what Chevron is conveniently now claiming. And fraud did occur alright, and many of Chevron employees should be in jail for engaging in it.
During the trial in Ecuador, Chevron:
- Orchestrated a deceptive "sting" operation involving a former Chevron employee and a convicted felon who attempted to bribe the sitting judge;
- When the scandal unraveled, Chevron helped move the former employee to the U.S. and continues to pay his rent, legal counsel, and a generous monthly salary, though he does no work for the company;
- Worked with the Ecuadorian military to fabricate a false military report which delayed crucial judicial inspections of contaminated sites;
- Selected soil and water samples from conveniently illogical places, such upstream from contamination sources;
- Used an "independent" laboratory operated by the wife of a Chevron employee to process its sampling evidence, where samples were swapped or destroyed;
- Offered a former judge in the case a literal "suitcase full of cash" and helped move him to the United States, where Chevron provides him with payments of $144,000 per month – approximately 30 times the basic salary in Ecuador; and
- Offered the judge who issued the verdict a $1 million bribe in exchange for a favorable verdict. He rejected the bribe.
More on Chevron's fraudulent actions can be found here. But, in an aberration of justice, much of this evidence, and all of the evidence of Chevron's contamination, won't be admissible in the RICO trial. In fact, there won't even be a jury. After forum shopping for several years, Chevron found an ally in Judge Lewis Kaplan, who had worked previously for a firm that represented Chevron. Kaplan actually invited Chevron to bring RICO charges. He has given the company everything it has asked for, except for a small handful of carefully orchestrated decisions denying minor Chevron motions in order to not be removed from the case for bias by the Court of Appeals. So Kaplan alone is judge and jury, and will surely give Chevron what it wants, as he has for the last three years in the run-up to the trial.
What's even more absurd is why a New York judge has taken it upon himself to decide whether an Ecuadorian court case was fairly adjudicated. A judge who speaks no Spanish and is unfamiliar with Ecuador's law or legal system – who has never even been to Ecuador – will be deciding this case completely on his own. And this case is really about whether people like Hugo and Javier get clean water and the pits full of toxic sludge near their homes will be cleaned up.
Chevron is on the lam, a fugitive from justice, and doing whatever it can to avoid responsibility, including going after the very people whose lives it devastated, and anyone willing to support them. According to Chevron, people like Hugo and Javier are the criminals, while the company, tried and convicted, is the victim. But also included with Camacho and Piaguaje is Steven Donziger, a legal advisor to the plaintiffs. Achieving justice for the Ecuadorians has been his life's crusade, and he has worked with them for over twenty years. But Chevron, armed with more than 60 legal firms, some 2,000 legal professionals, top PR companies, the shadowy "investigative and risk" management firm Kroll, and endless resources, has tried to outlast and vanquish the Ecuadorians and their advocates like Donziger. Unable to put a pair of cement shoes on him and drop in the Hudson, Chevron has ironically gone after Donziger and the Ecuadorians with a statute that is better applied to the company itself. Is there a business more fitting of RICO charges than the oil industry?
The RICO case that begins today is a new low for the legal establishment. It goes down in the books alongside the Twinkie defense, among other ludicrous ways in which companies or people get off the hook for clearly punishable crimes and other travesties of justice. But at the end of the day, the trial is a sideshow, an attempt by the company to keep its investors from jumping ship. The communities are actively pursuing Chevron assets in Argentina, Brazil, and Canada, all countries where Chevron hopes to develop and secure new access to reserves that are its economic life blood. And a RICO verdict from a court with no jurisdiction over the Ecuadorian verdict or people will weigh little for most of the world. And that's bad news for Chevron, and good news for Hugo, Javier, and the other thousands of people who are waiting for justice to be served.