Wednesday, January 8, 2014

Lost In Translation: Justice for the Ecuadorian Villagers in Chevron's Retaliatory RICO Trial

Julio Gomez, a Colombia-born American lawyer, stunned a New York courtroom where Chevron is trying to attack a $9 billion Ecuador judgment against it for dumping toxic waste into the Amazon.

When Gomez began his closing remarks in Spanish on behalf of the Ecuadorian villagers who won the judgment, he refused a translator for a mostly English-speaking audience.

Reverting to English, he told the packed courtroom: "(for) those who didn't understand what I have just said now have, for one brief moment, a sense of what my clients felt" during the seven-week trial before U.S. Federal Judge Lewis A. Kaplan.

While both sides paid for translators during the trial, trying a case as complicated as Chevron's retaliatory racketeering lawsuit against the Ecuadorians and their counsel was confusing enough in English much less in Spanish.

Much got lost in translation, including justice for Gomez's clients.

No U.S. court has jurisdiction over another country's judicial system, even when that system rules against a U.S.-based corporation that just happens to be responsible for the deliberate contamination of Ecuador's rainforest. That Texaco, now owned by Chevron, admitted to having dumped 16 billion gallons of toxic water into the rainforest's waterways and abandoned hundreds of huge, unlined waste pits filled with pure crude and other toxins is NOT in dispute.

What is in dispute is who is responsible, and Ecuador's highest court has upheld the decision. It's Chevron.

Now Chevron wants a U.S. court opinion that says that's wrong. But imagine a U.S. judge sitting in judgment of the decision of a British or German court and declaring it unenforceable and fraudulent. It would never happen. And it certainly shouldn't happen in a case where the defendant (Chevron) wanted the case tried in Ecuador in the first place, begging and pleading with U.S. courts to send it there.

Ecuador, though, is a small country that has commanded almost no respect in Kaplan's courtroom for the past three years. In fact, Kaplan has treated the country with a level of nastiness that violates basic principles of comity between nations. He recently remarked from the bench about

Ecuador's judiciary: "[b]elieve me, if this were the High Court in London, you can be sure I'd wait" (on a ruling then before the Ecuador court).

But wait for an Ecuador court? Not a chance.

Kaplan even claimed the underlying case affirmed by Ecuador's Supreme Court was "not bona fide litigation". In his decisions, he has consistently called the villagers the "so-called" plaintiffs, suggesting they might not even exist.

There's also this telling comment about the lawsuit from a Chevron lobbyist: "We can't let little countries like Ecuador screw around with large companies."

No indeed.

In traveling to Latin America and working with people from Ecuador, Columbia, Brazil and Argentina, I often hear the same refrain: "Americans are arrogant. They think they know it all."

The way the Ecuadorians have been treated by the U.S. court system, as well as by some U.S. reporters covering the trial in front of Kaplan, has done nothing to change this view. For example:

  • During the trial, Judge Kaplan struck large sections of written and oral testimony about Chevron's contamination of the rainforest, declaring that it had nothing to do with Chevron's charge that the lawsuit itself is fraudulent and that the Ecuadorians' lawyers and other advocates have lied about the contamination in order to"extort" money from the oil company.

    Don't ask me to explain the inexplicable. I can't. I've seen the contamination with my own eyes. I've talked to people who have lost their loved ones to cancer due to exposures to toxins left behind by Chevron. I've seen the overwhelming scientific evidence against Chevron. This lawsuit is anything but fraudulent.

    As a Canadian appellate judge recently wrote in a ruling allowing the Ecuadorians to attempt to seize Chevron assets in that country: "...the Ecuadorean plaintiffs deserve to have the ...enforcement of the Ecuadorean judgment heard on the merits in an appropriate jurisdiction."

    Because Chevron refuses to pay the court judgment, the villagers have filed collection actions in Canada, Brazil and Argentina to seize Chevron's assets so they can generate funds to clean up their ancestral lands. The RICO lawsuit in the U.S. is nothing less than Chevron's latest attempt to block those asset seizures and ultimately to obtain impunity for its wrongdoing.
  • A clerk of Kaplan's rolled her eyes and smirked when Javier Piaguaje, one of the Ecuadorians who sued Chevron, walked into the courtroom wearing the traditional dress of his indigenous tribe, the Secoya. Piaguaje has lost family members to cancer and was set to testify about the contamination – until Chevron's lawyers objected and the judge excluded that portion of his testimony. The clerk's bold show of disrespect for Piaguaje and his plight was jarring to someone like myself who hasn't spent a lot of time in a courtroom. If this kind of behavior is fairly common, then I can certainly understand better why American citizens of color often say they are intimidated by the U.S. judiciary.
  • Another Ecuadorian, Donald Moncayo, who organizes tours of the contaminated areas in the rainforest, traveled for two days from the rainforest to New York's concrete jungle to testify. While on the stand, he mentioned his laptop. Judge Kaplan asked Moncayo if had the laptop with him in New York. When he answered, yes, Kaplan turned to Chevron's lawyer, Randy Mastro, and said, "Take it from here, Mr. Mastro." Mastro then motioned to seize the laptop, and Kaplan ordered it turned over to Chevron within two hours. Since Moncayo was not one of the named defendants in Chevron's RICO case, he had no legal representation. Kaplan denied motions to allow him time to find an attorney.

    Afterwards, standing on a noisy New York City street, Moncayo had no idea why three men in expensive black suits in a Lincoln town car were driving away with his laptop, which they kept for 14 hours. On the laptop were photos of his children and wife. This high-drama tactic produced nothing for Chevron, except a story that Moncayo will never forget and will repeat over and over again. His parting words at the airport were, "I will never step foot in this country again."

    Not one reporter covering the trial wrote about what happened to Moncayo.
  • Some did write, however, about what the former Ecuador judge who wrote the $9 billion judgment was wearing to keep warm in a courtroom so cold even hardy New Yorkers were shivering. The former judge, Nicholas Zambrano, traveled voluntarily from Ecuador to Kaplan's courtroom to defend against Chevron's baseless allegation that he accepted a bribe. Zambrano also received an unceremonious welcome: Kaplan allowed Mastro to berate him after he creepily promised a "warm New York welcome".

    Mastro literally gave Zambrano a trick pop quiz about his ruling on the stand. To keep warm on the second day of his testimony, Zambrano wore a wool cap, a scarf and gloves. One reporter described his attire and testimony as "bizarre" and headlined his article, "Attempt to Rehabilitate Chevron Judge Gets Very Weird."

    It is possible that Judge Zambrano was making a "fashion statement" of his own to tell Kaplan what he really thinks of the idea of a New York judge serving as a self-appointed arbiter of a foreign nation's judicial rulings. But the American reporters didn't see it that way. Instead, they wrote about how Zambrano could not answer some of Mastro's trick questions in the pop quiz. Little did they know that Kaplan – who has never been to Ecuador and certainly would never go there to appear in a trial to defend one of his rulings – dismissed the pop quiz in a side bar with just the attorneys present. In an apparent defense of Zambrano, Kaplan remarked that even the highly-regarded U.S. Judges Benjamin Cardozo and Learned Hand would not be able to remember details of a three-year-old decision.
  • While reporters focused on the pop quiz and Zambrano's attire, another former Ecuador judge (Alberto Guerra) to whom Chevron paid huge sums to turn on Zambrano got on and off the witness stand relatively unscathed – at least in the eyes of Kaplan and most reporters. In fact, nobody covering the trial detailed how Guerra testified that he changed his story about the alleged bribe three times to get Chevron to pay him more money and agree to move his entire family to the United States. Chevron has entered into a contract with Guerra that provides him with at least $350,000 over two years in exchange for favorable testimony. Chevron also has an option to continue the "funding relationship" indefinitely. Questions raised about faked deposit slips Guerra submitted as evidence were just not as interesting as Zambrano's wool cap.

Of course, what is really weird and bizarre is that the Ecuadorians sought to have the New York court hear the trial when the case originally was filed in 1993, but the court sent them packing back to Ecuador. A different U.S. trial judge concluded in 2001 that the courts in Ecuador were sufficiently independent and fair, and more than capable of hearing the case. Gomez, in his final brief to the court, captured this sad irony:

"When the Amazon communities came here many years ago seeking justice, this Court was eager to expel them from New York – it tried to do so once and was reversed by the Second Circuit Court of Appeals, then managed to dispense with them more permanently the second time around. With no regard for this history, this Court now appears determined to maintain a death-grip on these Ecuadorian citizens, and to make itself the global, authoritative voice in this dispute.

"This Court has locked the Lago Agrio Plaintiffs into this case to this point by giving Chevron every benefit of every doubt even when there has been no good reason to do so, and, at times, by finding uncertainty in the law where none really exists. In so doing, the Court has forced the Lago Agrio Plaintiffs to expend massive resources here that likely otherwise would have been allocated to attempting to enforce the judgment that it took them eighteen years to win – one of Chevron's obvious main objectives in filing this blunt instrument of a lawsuit...."

In the opening of his final brief on behalf of the Ecuadorians, Gomez aptly wrote: "The United States courts have failed the Ecuadorian Amazon communities."

Within the next two months Kaplan is expected to issue his opinion. In the eyes of the Ecuadorians that is all it will be – his opinion and, an arrogant one, at that.

No comments:

Post a Comment