Thursday, October 31, 2013

You Get What You Pay for (Perjury, in This Case)

You Get What You Pay for (Perjury, in This Case)

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

Donziger & Ecuadorians File Motion to Strike Testimony of Chevron's Well-Paid Witness

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

Corporate Rights or Human Rights?

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

RICO Bombshell Further Erodes Credibility of Key Chevron Witness

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

Chevron's Retaliatory Show Trial Opens in New York

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.

Retaliation Trial Opens Against Victims of Chevron Contamination in Ecuador

Reposted from Eye on the Amazon

Javier Piaguaje

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:

Ladies and gentlemen,

30,000 people were affected by Chevron's contamination and each day this number increases. Almost 30 years of criminal operation by the Chevron-Texaco oil company in Ecuador; more than 1,500 square miles of contaminated Amazonian rainforest; rising cases of cancer that almost always end in death; the suffering of our women for the great number of miscarriages; the devastation of the ecosystems and the destruction of thousands of species of plants and animals.

When Texaco arrived, we were expelled from our ancestral lands and two indigenous peoples went extinct. What the oil company brought to the Ecuadorian Amazonian was violence, death and destruction; meanwhile, the company got all the riches that the land offers at the cost of our lives, our health, and our home.

For this reason we continue our efforts to hold Chevron accountable, so that the company pays for all of the harm that it caused. We are here in New York now, where Chevron persecutes us and accuses us of being criminals and is supported by a judge who doesn't know our reality and suffering and hopes. Who are the real villains in this story?

We are outside this courthouse to tell the history that Judge Lewis Kaplan has refused to hear. Our misery is real and it will not cease to exist by a judicial process in New York, where Chevron hopes to avoid its responsibility with the collaboration of a judge that isn't even willing to validate the harm that we've had to endure. We come to denounce the abuse that is being committed in affected communities but also to tell them that we have already fought for 20 years and this RICO lawsuit will not stop us in our quest for justice.

The oil company has declared that it will fight us "until hell freezes over." Obviously our economic conditions are not the same; they can buy justice, we cannot. Because of this we must unite to fight against a giant that understands money, but not values like solidarity, truth, fellowship, and above all, justice.

Our fight is to keep the Amazon, the lungs of the planet, alive.

Our fight should interest the whole world.

We unite to make the world a place that is worth living in. The Amazon was one of those places. With your help, it can be again.

Thank you.

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.

More Information:

For more on the campaign to hold Chevron accountable for its abuses in Ecuador:

For more on the impending trial in Chevron's retaliatory lawsuit:

Smooth Criminal: Chevron Sues Rainforest Communities It Contaminated

Reposted from Eye on the Amazon

Who is the real criminal?

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.

Tuesday, October 8, 2013

Judge Kaplan Denies Jury Trial for Donziger and Ecuadorians

Reposted from The Chevron Pit

Today, the New York Law Journal ran an article on its front page about the upcoming trial in Chevron's retaliatory RICO lawsuit against the victims of Chevron's abuses in the Ecuadorean Amazon, and their long-time U.S. attorney, Steven Donziger. The piece begins:

The pitched battle between Chevron Corporation and a lawyer and Ecuadorians who won a multi-billion-dollar environmental judgment against the oil company in Ecuador is set for trial on Oct. 15, before Southern District Judge Lewis Kaplan.

Reporter Mark Hamblett opens with the competing narratives – Chevron on one side, human rights attorney Donziger and the Ecuadoreans on the other – in this case:

Kaplan Monday denied the request of attorney Steven Donziger and two of his Ecuadorian clients for a jury trial in the case, where Chevron is alleging Donziger ran a racketeering conspiracy to win the so-called Lago Agrio litigation in Ecuador by fraud, and Donziger is accusing Chevron of scorched-earth tactics to avoid taking financial responsibility for environmental damage left behind by a predecessor oil company.

As the trial evidence mounted in Ecuador over Chevron's devastation of a sprawling swath of inhabited Amazon rainforest, it became increasingly clear that Chevron would likely be found liable. On that, the company was right, and in February 2011, the oil giant was ordered to pay nearly $19 billion in compensatory and punitive damages.

But by then Chevron had launched its retaliatory campaign against Donziger and the Ecuadoreans. In 2009, with an adverse judgment from the Ecuadorian court looming, Chevron press operative Chris Gidez wrote in an internal company memo that "our L-T [long-term] strategy is to demonize Donziger."

Today's NY Law Journal article continues:

After Chevron filed its lawsuit, Donziger said, "It then used 'the explosive' 'thermonuclear' impact of the allegations – the 'terrorizing' effect of civil RICO 'as another court has described it' – to launch a global smear campaign designed to destroy my reputation, chill my free speech rights, and drive me away from representing the Ecuadorian communities who are my clients. This campaign was promoted, encouraged and amplified by the very court that Chevron now seeks to preside over a bench trial."

In addition to "fundamental fairness" requiring a jury trial, Donziger said, "Chevron has accused me of being a 'criminal' in open court," and "it would amount to a travesty of justice to deny me and my clients a jury trial in what is essentially a private prosecution funded by corporate largesse."

Legal Newsline covered the development today as well, quoting Donziger spokesman Chris Gowen, who called Kaplan's decision "a clear abuse of power" and said that it shows Chevron doesn't believe in its own case:

"This critical decision made only days before trial virtually guarantees Chevron its desired outcome from a judge who already has decided all key issues in the case before evidence has been presented," Gowen said in a statement.

While Judge Kaplan – who famed trial attorney John Keker charges with allowing Chevron's RICO case to degenerate into a "Dickensian farce" – remains intent on being the sole decider, Donziger and the Ecuadoreans are preparing for trial.

As we file this post, there is one brief comment on the Legal News Line article from a reader named Peter. We don't know who Peter is but we think he nails it:

The fact that Donziger is prepared to risk a huge financial judgement in order to be tried by jury clearly illustrates which side is more confident of its merits.

Friday, October 4, 2013

Whose First Amendment Rights Are These Anyway?

Reposted from EarthRights International

Cook's blog post last week draws much needed attention to the risks that brave human rights activists around the world take to ensure the rights of all human beings are respected in the face of corporate power. In the U.S., we are fortunate to have some of the strongest protections for free speech and expression in the world. Nonetheless, corporate efforts in the U.S. to silence human rights and environmental defenders are increasing.

Particularly since Citizens United, we've seen the corporate lobby make unprecedented and increasingly bold arguments against legal responsibility or accountability by using the First Amendment's protection of free speech. At the same time, however, corporations have increasingly targeted human rights and environmental activists who exercise their free speech rights to call attention to corporate abuse and advocate on behalf of victims.

The Chevron/Ecuador saga provides a particularly illustrative example of this First Amendment hypocrisy. Rather than pay the $18 billion judgment against it for environmental devastation in Ecuador, the company decided to sue the lawyers who brought the case and their Ecuadorian clients. As part of this effort to avoid paying the judgment, Chevron has mercilessly hunted down any organization or individual who has dared to publicly speak out about the plight of the Ecuadorians affected by the company's former operations and the tragic damage to the Amazon it left behind. The company has abused the discovery process to go after activists and advocacy organizations like Amazon Watch, lawyers, journalists, and even its own shareholders with subpoenas and harassing depositions that target the exercise of protected First Amendment activity, harass, and chill future speech it doesn't care for. Chevron and its counsel have been sanctioned, admonished, and questioned for its tactics by a number of U.S. courts, but it hasn't changed its practice.

Chevron has also made novel use of the RICO statute – a statute originally passed to pursue the Mafia - to bring in to its lawsuit not only the actual defendants, but also any vocal critics of the company by alleging that activists engaged in an unlawful “pressure campaign” to try to coerce Chevron into settling the case against it. Using RICO has the added benefit of allowing Chevron to label anyone who speaks out against the company a “co-conspirator” without having to demonstrate any actual wrongdoing – or face liability for slander or defamation. The company repeatedly trumpets this line in the press – despite the fact it hasn't proved any of its allegations yet – and at the same time accuses the defendants and activists of illegal conduct when they publicly call on Chevron to clean up the pollution it caused.

But retaliation against human rights advocates and activists isn't unique to Chevron. Corporate defendants facing lawsuits alleging human rights abuse have responded, for example, by filing SLAPP suits (Strategic Litigation Against Public Participation) against the attorneys that brought the case. SLAPP suits frequently allege defamation, conspiracy, and malicious prosecution, among other torts, and are often blatantly retaliatory. Winning doesn't matter all that much: the suit itself is payback enough as it can cost an attorney enormous amounts of time and resources, which can be particularly crippling for a human rights practice. A number of states have taken important steps to prevent this sort of action by passing anti-SLAPP statutes that allow a court to dismiss cases or claims that meets the SLAPP criteria. Chevron brought a SLAPP suit against a lawyer in connection with the Ecuador case that was ultimately dismissed thanks to California's anti-SLAPP Statute. Drummond recently filed a SLAPP suit in Alabama against a human rights attorney who has brought cases against the company for its alleged role in egregious human rights abuses in Colombia. Unfortunately, Alabama doesn't have an anti-SLAPP statute. For other examples, see here and here.

Whether or not Chevron ultimately succeeds in its RICO lawsuit, its multifaceted crusade against environmental and human rights activists and lawyers provides a deeply problematic blueprint other companies may be tempted to mimic to strike back against critics and mitigate the PR damage that a human rights or environmental lawsuit can cause. At the same time, the corporate lobby continues to use the First Amendment to argue against accountability and legal responsibility and in favor of increased constitutional protections for corporations. If the First Amendment continues to be reinterpreted to protect and maximize corporate power, will there be anything left of it to protect the free speech rights of individuals and activists?

– by Michelle Harrison