Tuesday, June 24, 2014

"Legal Tender"

Donny Rico on how Chevron's legal thuggery really works

Reposted from the Eye on the Amazon

At long last we bring you Episode #3 in The Adventures of Donny Rico, a clever deep dive into the methods used by Chevron in its desperate and unethical campaign to turn the tables on the very victims it poisoned in Ecuador's rainforest. [Watch Episodes #1 and #2 here and here.]

Take it from Donny: it's no secret that Chevron has spent millions upon millions of dollars in an abusive "scorched earth" legal strategy to attack not only the villagers and their representatives who have held the company accountable in Ecuador, but virtually anyone who supports them. This is part of a decades-long legal strategy to delay paying for a clean-up, to deny the facts and simply to try to crush the opposition which has been gaining the upper hand yet again.

As a recent Huffington Post article stated in relation to Chevron's abuse of our civil justice system to evade its obligations in Ecuador: "Chevron has put an unprecedented amount of resources into its campaign against the Ecuadorian villagers, hiring more than 60 law firms and 2,000 legal professionals to wage a war of attrition, wearing the plaintiffs down through countersuits and flooding them with a constant barrage of paperwork."

In this case, Chevron hired a law firm willing to throw ethics to the wind and take extraordinary steps to concoct a story of Chevron as the actual VICTIM of a conspiracy. Just imagine what it would take to try to turn the tables after Chevron had ADMITTED to dumping toxic waste into the Amazon rainforest.

Well, it turns out the best way to do it is to go the ol' Nixon route and try a bunch of dirty tricks – and then accuse the other side of doing just those things. Who better to lead the campaign than the "guns for hire" known as Gibson Dunn & Crutcher? The same firm the Montana Supreme Court blasted for using "legal thuggery" and "blatant and malicious intimidation" tactics while another U.S. federal judge said that the firm maintained "a culture [of] obstruction and gamesmanship."

Just like their sister spin-doctor and PR flack Sam Singer, Gibson Dunn is quite open about using a template to defend its high-profile corporate clients who are losing legal cases or are trapped in scandal. It does this by targeting the lawyers or witnesses who held their clients accountable with character assassination and defamation campaigns.

Gibson Dunn masterminded a strategy where a single U.S. judge with more arrogance than Dick Cheney re-litigated the eight-year Ecuador trial in his courtroom in what can only be described as a Kafkaesque proceeding. The judge refused to consider the Ecuador trial record, the 64,000 chemical samplings results that proved Chevron committed a massive environmental crime, or the Supreme Court decision that already considered Chevron's complaints and rejected them.

How did Chevron and Gibson Dunn get it done? First they spent years trying to create dirt and get it to stick. They mounted racist attacks on Ecuador, hired PR firms and bloggers to attack the Ecuadorian communities, Ecuador's legal system, and of course the lawyers, activists, human rights defenders or allies supporting them. They launched "sting" operations, attempted to entrap judges, hid information about contamination from the court and turned a straightforward case into what is probably the most abusively litigated nightmare in the history of world jurisprudence. The trial in Ecuador took over a decade to complete.

While Chevron – under the "leadership" of CEO John Watson – was stitching together its Frankenstein monster in Ecuador, it laid the groundwork in the U.S. to fabricate a massive "conspiracy" to be used to try torpedo and delay the verdict they knew would be against them around the world.

Chevron and Gibson Dunn filed dozens of discovery lawsuits across the county and racked up over $36 million in legal fees. They tried to find any court that would hear their trumped up allegations. Many rejected them and one federal appellate court in Philadelphia reversed a discovery order stating "[t]he circumstances supporting [Chevron's] claim of fraud largely are allegations and allegations are not factual findings." The appeals court further chastised Chevron's attacks on the Ecuador courts as "disparaging." Some judges dismissed the firm's legal attacks under laws designed to fight "SLAPPs" (Strategic Lawsuits Against Public Participation, i.e. intimidation suits), while others ordered Gibson Dunn to pay fees to its adversary and other sanctions.

But when you have a self-deluded management team with unlimited shareholder funds and an army of lawyers, when confronted with resistance you simply dust ‘em off and try again. So the Chevron and Gibson Dunn fishing expedition eventually nailed a real whale with U.S.Judge Lewis A. Kaplan. With Kaplan essentially taking on the role of Chevron's prosecutor-in-chief in a courtroom where he officially presided as judge, the oil company and Gibson Dunn had never had it so good. The fact that Kaplan's show trial proceeding fell below minimal standards of due process is completely ignored by the company, even though the deep flaws in the proceeding will likely prove fatal to any effort by Chevron to use Kaplan's opinion to block enforcement actions in other jurisdictions.

Kaplan himself encouraged Chevron to file the RICO suit and assigned the case to his own court. He also called the villagers the "so-called" plaintiffs and said their case did not constitute "bona fide litigation" but instead was akin to "mud wrestling." He said the main legal advisor to the Ecuadorians, Steven Donziger, was using the case to become the "next big thing in fixing the balance of payments deficit" of the United States. Really?!

The story of the sham trial has been told many times on Eye on the Amazon. And Donny Rico will have more to say about the particulars of Chevron's (with Kaplan's encouragement) bribing of witnesses and creating fake conspiracies. But it still took massive resources to keep the truth from prevailing in court, and Chevron and Gibson Dunn had many ways to ensure this. Intimidation, pressure and legal might simply made it impossible for opponents to defend themselves.

If they came up against a consulting business that supported the Ecuadorians, they would pressure their other clients to drop them with fake allegations. Stratus Consulting, which had provided scientific reports backing the claims of toxic contamination, is a perfect for example. Chevron tried to block their access to government contracts essential to keeping their business afloat. They hounded Stratus to the brink of bankruptcy by filing misleading complaints with government agencies and creating defamatory websites. Stratus quickly buckled under the legal thuggery and signed a statement written by Gibson Dunn in favor of Chevron and in obvious contradiction to the facts in Ecuador and to the previous sworn statements of the group's consultants.

When facing opposition from journalists, Gibson Dunn either used Kaplan's court or legal threats to intimidate and force them to kill their stories, or to turn over all their sources and footage. Chevron fought CBS's 60 Minutes tooth and nail to prevent production of what turned out to be an extremely damning report (which, by the way, won the 2010 Edward R. Murrow Award). After winning Kaplan's verdict they scared CBS enough to remove the story from the company's website (still found here).

When they faced another big law firm (Patton Boggs) on the side of the Ecuadorian villagers, bullying Gibson Dunn simply found their weak spot and pressed as hard as they could until the firm backed down. Patton Boggs was counting on a merger with a larger law firm to rescue it from its economic problems. With a Kaplan-backed lawsuit filed by Chevron hanging over their heads, Patton Boggs paid Chevron $15 million to back off in violation of their own ethical obligations to their clients.

And what to do when facing growing grassroots pressure and shareholder dissent organized by environmental or human rights groups? Chevron and Gibson Dunn used multiple nasty strategies of attack. They went after our funding, tried to damage our reputation and used more legal thuggery to try to bog us down with massive subpoenas seeking hundreds of thousands of documents detailing campaign strategies and donor information.

But that's just where Gibson Dunn hit a snag. Backed by the pro bono support of excellent human rights and environmental lawyers from EarthRights International, Amazon Watch was ready to defend itself and did. The attacks from Chevron only demonstrated our own effectiveness to our donor base and actually strengthened our organization's resolve to press on.

When Amazon Watch was defending itself in federal court from Chevron subpoenas, Gibson Dunn repeatedly tried to move the case – improperly - into the hands of Judge Kaplan in New York. They failed. And in their attempts they were almost sanctioned by Federal Judge Nathaniel Cousins in San Francisco for serving such overly broad and abusive subpoenas. I guess they started to get a little drunk with power from Kaplan's unending support and got sloppy. But when this real judge looked impartially at their request, he stated that despite over 70 Gibson Dunn filings claiming that Amazon Watch was a conspirator "all that Chevron has shown this Court is that Amazon Watch has been very critical of Chevron's operations in Ecuador." He then warned Chevron that if it tried the same tactics again they had better take great care to "avoid infringing upon the organization's First Amendment rights. Otherwise, the Court (would) impose sanctions."

Gibson Dunn had to let that one go, and I am guessing they're still stewing over it.

One could write hundreds of pages detailing Gibson Dunn's dirty tactics, but we'll leave it to Donny on this note. As he mentions, Gibson Dunn's lead lawyer Randy Mastro personally met in Chicago with Chevron's key witness – disgraced ex-judge Guerra – to negotiate the exchange of huge sums of money and other benefits in exchange for his "factual" testimony. They also doctored video evidence and possibly engaged in fraud on the Ecuador court by failing to disclose that its technicians were ordered to hide dirty soil samples. The list of unprecedented attack on justice waged by Chevron and Gibson Dunn goes on and on. Increasingly disturbing to many is that their "pioneering" work could make it easier for other corporations to do the same without having to spend nearly as much. Kaplan's verdict, though likely to be overturned, could set a dangerous precedent by criminalizing First Amendment protected activities by environmental, human rights and corporate accountability groups.

Which leaves one wondering what's worse: committing the crime and then refusing to clean up, or wasting over a billion dollars to pay rich lawyers to fight while Ecuadorian communities continue to suffer? Actually, they are simply two different sides to the same Chevron coin.

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