Shaky Evidence and Appellate Court Scrutiny Starting to Disrupt Company’s Master Plan
Reposted from The Chevron Pit
In an otherwise routine scheduling conference recently before Judge Lewis A. Kaplan, Gibson Dunn lawyer Randy Mastro suggested the oil giant was prepared to drop all damages claims against the Ecuadorians and their counsel, Steven Donziger, just to avoid a jury trial. The company's “Plan B” appears to be to seek a fraud finding from Judge Kaplan alone – something the judge does not seem inclined to do, and something that would have little chance of working even if he did.
The fact Chevron is even thinking of this possibility is a huge retreat. It's also a strong indication that Chevron believes its billion-dollar investment in the RICO case has suddenly become a high-stakes gamble with far greater risk than CEO John Watson is letting on to shareholders and the financial markets. A loss in the case via a jury verdict would be disastrous for the company both in the U.S. and in defending enforcement actions targeting its assets in countries around the world.
If it were to drop the damages claims, Chevron might avoid a civil jury trial which in most cases is only guaranteed to a defendant when money is at stake. But if Chevron chooses to go down this path, it will be left with virtually nothing to litigate. It might get a “finding” from the discredited Judge Kaplan, but that will be of little or no use in foreign courts who already see the judge as a vassal of U.S. judicial arrogance.
To be clear: Chevron never thought the RICO case would get this far. Juries are inherently unpredictable. For a large corporation like Chevron with a $19 billion liability and the reputations of its senior management team at stake, that's also terrifying. Chevron simply cannot afford to lose this case.
Chevron assumed that the small legal team for the Ecuadorians would be ground to a pulp by now. Or that Judge Kaplan would have found a way to rule in Chevron's favor on pre-trial motions. Both strategies have failed.
After being unanimously reversed in 2012 when he tried to block the Ecuador judgment from being enforced anywhere in the world, Judge Kaplan appears anxious to push Chevron's allegations into the hands of a jury. (That will come after the judge continues to make evidentiary decisions to rig the trial in Chevron's favor. See here and here for a taste of Kaplan's bias.) In the end of the day, Judge Kaplan knows any finding he makes alone has little chance of surviving appeal and his own instincts at this point are to protect himself, even if it means Chevron cannot get everything it wants.
Chevron also knows juries tend to follow their gut. That does not bode well for Chevron's absurd notion that it is the victim of a global “racketeering scheme” foisted on it by the very indigenous groups who have had their ancestral lands poisoned by the company's toxic dumping. This “blame the victim” approach is classic historical revisionism practiced the world over by oppressors and Chevron is no different.
(For an understanding of the overwhelming evidence against Chevron in Ecuador, see this video, this 60 Minutes segment, and this summary of the evidence relied on by the Ecuador court to find the company liable for both polluting the delicate rainforest ecosystem and for trying to corrupt the trial that held it accountable.)
In 2011, the Second Circuit Court of Appeals reversed Judge Kaplan's illegal injunction purporting to block worldwide enforcement of the Ecuador judgment. Judge Kaplan's ham-fisted attempt to rescue Chevron from its misdeeds in Ecuador remains a sad example of ugly Americanism at its worst. See here, and here to get a feel for the international scorn provoked by this short-lived attempt by a U.S. trial judge to control the Ecuador judgment on a global basis.
Despite this personal setback – no Judge likes to get reversed – Kaplan does not appear to be the least bit chastened from the experience. And that's bad for Chevron because Judge Kaplan's hubris has put him in serious trouble yet again.
Just last week, the appellate court set oral argument in late September to determine whether Judge Kaplan should be removed from the RICO case altogether given his continued defiance of the Second Circuit's order that he not opine on the validity of the Ecuador judgment. See here for the latest facts underlying the petition for his removal. Let's just say it is serious business whenever a trial court thumbs its nose at an appellate court. To do it on multiple occasions and blatantly is even more perilous.
Judge Kaplan encouraged Chevron to bring the RICO action in the first place. Without his efforts, it likely never would have gotten past first base. The judge has jerry-rigged the evidence by repeatedly violating the due process rights of the Ecuadorians and Donziger. He even has ruled they will not be allowed to present testimony about Chevron's massive pollution in Ecuador, thus making it virtually impossible to mount a meaningful defense. Should the case be reassigned to a fair judge, look for Chevron's claims to lose all traction.
As for the lawyers, Mr. Donziger and others are still confident. It was Donziger who recently forced Chevron CEO Watson to testify about Ecuador during a deposition – a shocking risk given that he now could be charged with perjury if it is found that he lied under oath. This industry royal was forced to endure the humiliation of answering live questions posed by a solo practitioner (Donziger) he previously called a “criminal” on earnings calls with investors. (Chevron has gone to great lengths to keep Watson's testimony confidential. When the lies and memory lapses get exposed, Watson will be further embarrassed and the global shareholder campaign against him will pick up even more steam.) Given these problems, it is understandable why Mastro is nervous about a jury trial. But there are other reasons.
First, Mastro is known far more as a political fixer than a trial lawyer. He will fight like a pit bull to avoid ceding the high-profile trial stage to the many more talented lawyers at Gibson Dunn, including his colleagues Theodore Boutrous and former star federal prosecutor Reed Brodsky. Any defendant would want Mastro to lead the Chevron show before a jury. Let's hope he hangs in there.
We have seen from previous hearings before Judge Kaplan how Mastro and his sidekick, Andrea Neumann, lack basic courtroom agility and have an off-putting personal style. Mastro already lost three key appellate arguments in the case and literally was laughed out of court in 2011 when he couldn't answer the most basic questions when trying to defend Judge Kaplan's illegal injunction before a three-judge appellate panel.
Second, Chevron's witness list reads like a Who's Who of small-time thugs, criminals, and cartoon characters. Almost all have agreed to testify because of some combination of bribes or intimidation coming from Chevron headquarters. While the oil goliath has packaged this testimony for maximum effect in affidavits clearly ghostwritten by its own lawyers (leading to a lot of slanted reporting in its favor), under the klieg lights of trial it is doubtful that any of these people will retain even the slightest veneer of credibility.
Exhibit A is former Ecuador Judge Alberto Guerra Bastides, an admitted con artist who received a suitcase full of cash from Chevron lawyer Andres Rivero in Quito in exchange for favorable testimony. In a deal negotiated directly by Mastro, Chevron has committed to paying Guerra at least $326,000 or roughly ten times his annual salary. These payments are a clear violation of the ethical rules. Given his many credibility problems, it is unclear if Guerra will even take the stand. If he does, he will help the Ecuadorians more than Chevron.
Exhibit B is Christopher Bogart, the disgraced CEO of the litigation hedge fund Burford Capital. Bogart helped to fund the legal battle of the Ecuadorian communities until Chevron threatened to add Burford as a RICO defendant. In a panicked response, Bogart betrayed his clients and engaged in some cowardly double-dealing with Chevron – privately negotiating an exit from the case with Chevron's lawyers while supporting the Ecuadorian communities publicly. Bogart even emailed Mastro after the Chevron RICO filing and just weeks after he funded the Ecuadorians: “Randy – congratulations on a superbly executed campaign!”
Bogart eventually signed an affidavit to help Chevron where he clearly lied to the court about being “misled” by the Patton Boggs law firm and Donziger (Bogart's own emails, which are nauseating to read, showed he actually believed the opposite). See this devastating take-down of Bogart in a court brief filed by Patton Boggs as it seeks to strike his affidavit and impose sanctions against Chevron. It is unclear to us after reading this brief how Bogart will ever again work in the funding business.
(If any investor out there is thinking about Burford as an opportunity, they should read about the lack of ethics displayed by Bogart and another Burford director, Ernest J. Getto. Since Bogart cannot be trusted to disclose this document – it is nowhere to be found on Burford's website – we have decided to post it here.)
Chevron's other main witnesses have been similarly discredited. It is now clear that Chevron threatened Douglas Beltman and Ann Maest – former scientific consultants to the Ecuadorians – with personal bankruptcy and career destruction before they signed affidavits that contradicted prior sworn statements under oath attesting to the company's responsibility for massive pollution in Ecuador. Beltman and Maest, who since have been fired from their jobs, will have little credibility if they take the stand and try to help Chevron. Expect lawyers for the rainforest communities to call these Chevron witnesses as their own if Mastro gets cold feet.
Chevron's internal documents suggest the company is hanging itself by its own petard. When faced with overwhelming scientific evidence of its guilt in Ecuador, Chevron decided to launch a strategy to “demonize” Donziger to distract attention from its own environmental crimes and fraudulent remediation. This included using six Kroll operatives to spy on Donziger and his family in Manhattan. How will a jury view a big oil company that tries to cover up its atrocities by demonizing a human rights lawyer who helped hold it accountable?
Chevron also launched a campaign to attack the government of Ecuador and to declare war on its courts even though Chevron fought for years to venue the case there. A memo by Chevron consultant Sam Singer suggests the company adopt “message themes” that would portray Ecuador as “the next major threat to America” and “as the next Cuban missile crisis in the making.” This type of overreach actually reflects Chevron's level of desperation. The company's incessant attacks against Ecuador's popular President, Rafael Correa, have started to alienate almost every oil-producing nation in South America and put the company's business operations at further risk.
The Singer memo will not sit well with a New York jury either. Nor will other internal documents that show Chevron tried to bribe judges, pay off Ecuador's government to illegally quash the case, or ask its employees to engage in obstruction of justice by destroying damning documents about its many oil spills in the Amazon.
Chevron's entire strategy with the RICO case has been to obtain a huge judgment that it can then use to offset the enforcement actions (currently pending in Canada, Brazil, and Argentina) where the rainforest communities are targeting company assets. Chevron has sued Donziger and his clients for upwards of $60 billion, thought to be the largest potential personal liability in U.S. history. Giving up on that cannot be an easy decision.
Chevron is now caught in a maze of its own creation. Here is Chevron's dilemma. If it takes the case to trial before a jury, the entire house of cards is at risk of falling down. If it drops the damages claims to avoid a jury, any decision by Judge Kaplan will have little or no impact. And the court of appeals is watching so closely that Chevron simply cannot expect Kaplan to run roughshod over the Ecuadorians and Donziger as before, even if he is allowed to stay on.
After billing Chevron outrageous sums and making grandiose promises to the world, the pressure is now all on Gibson Dunn. The firm's lawyers know a jury is risky business for a major client like Chevron with a proven record of human rights abuses and other corrupt activities in Ecuador. See this gripping photo essay from journalist Lou Dematteis for a sense of the profound human devastation Chevron has caused and that Gibson Dunn with Judge Kaplan's help is trying to bury.
It would be a personal and professional disaster for Mastro and Chevron General Counsel R. Hewitt Pate to fail to deliver a verdict in the company's favor. Watch for more furious maneuvering by Chevron as the October trial date nears.