Friday, July 17, 2015

Standing with Amazon Watch

Reposted from EarthRights International

Yesterday, Kellan Howell at The Washington Times published what can only be described as a hit piece against Amazon Watch, our longtime advocacy partner and sometimes client, for AW's continued support for a cleanup of Chevron's legacy of contamination in the Ecuadorian Amazon. Apparently, because a federal judge found that one attorney (Steven Donziger) committed fraud in the Ecuadorian pollution trial – a decision which is currently being challenged on appeal – that means that AW should stop advocating for a cleanup.

(I won't link to the article, but AW's response is here.)

If I were a snarky blogger, I might respond by saying something like, "Nice to see Kellan Howell take a break from cheerleading Donald Trump's immigrant-bashing to focus on a genuine issue of corporate accountability!" Or maybe: "Of course The Washington Times is my favorite local newspaper; what other totally respectable news organization would run "photo essays" on the best handguns under $500, and on the disputed title of the "sexiest woman alive," and then – in a truly masterful stroke – combine these two interests with Hollywood's hottest gunslingers? If that's not Pulitzer-bait, I don't know what is."

But of course, I'm a sober-minded lawyer, not a snarky blogger, so I'm really more interested in some boring legal issues raised by Ms. Howell's article.

Is this journalism – or a tort?

Ms. Howell started her investigation (I'm using the term generously) a couple months ago, by emailing a series of Chevron talking points to several AW funders. The emails read, in part:

Amazon Watch has worked closely with lawyer Steven Donziger in the case against Chevron, even letting Mr. Donziger write press releases that contained inaccurate and misleading information about Chevron to be distributed by Amazon Watch.

Last year a US District Court found that Mr. Donziger had fabricated evidence, ghostwritten studies and bribed judges to win the initial case against Chevron. The fraud charges prompted many of the investors in the case to back out. In his 500-page opinion, Judge Kaplan wrote that Amazon Watch worked directly with Mr. Donziger to distribute the false material, lobbied the media and the SEC to investigate Chevron and pressured shareholders and state comptrollers to sponsor shareholder resolutions to pressure Chevron to pay billions of dollars to settle the case.

Given this information, what I am interested in learning from the foundation is
1. does the foundation still give money to Amazon Watch?
2. Is the foundation aware of Amazon Watch's involvement in the Chevron case and its close connection with Mr. Donziger?
3. Did the foundation know that its contributions to Amazon watch was being used to perpetuate false evidence in this case?
4. If so, what is their reaction? Does that bother them and why keep funding the organization?

As I pointed out to Ms. Howell in an email at the time, this is not what I think of as journalism – it's trying to generate a reaction, rather than reporting on facts in the world. But that's not the biggest problem with it – the biggest problem is that it's demonstrably false. The centerpiece of Ms. Howell's email is: "Did the foundation know that its contributions to Amazon Watch were being used to perpetuate false evidence in this case?" (Full disclosure: I altered that quote to correct the capitalization and grammar.) As I wrote to Howell, this is not true:

First, Judge Kaplan did not actually find that Amazon Watch had said anything that was false. He faulted Amazon Watch for repeating an estimate that the Ecuador cleanup would cost $6 billion after the author of that estimate disavowed it, but Judge Kaplan did not make a factual finding that the cleanup would in fact cost less than $6 billion – in fact, the Ecuadorian court found that it would be more expensive than this. He also faulted Amazon Watch for repeating Donziger's estimate that the oil spilled in Ecuador was 30 times the size of the Exxon Valdez spill, but Judge Kaplan made no factual findings as to how large the amount of oil spilled actually was. In fact, Judge Kaplan could not have made any factual findings about the extent of contamination in Ecuador or the cost of a cleanup, because those issues were excluded from the Chevron v. Donziger trial. If he had addressed the issue, he would have considered the deposition testimony of Bill Powers – the same expert that Kaplan relied on to suggest that the 30 times estimate was misleading – who said that "the amount of toxic liquids that should not have been in the environment in Ecuador was at least 30 times the quantity or the volume of crude that was spilled in the Exxon-Valdez disaster."

Second, neither of these statements – the $6 billion estimate or the Exxon Valdez comparison – was submitted by Amazon Watch in court, and therefore neither constitutes "evidence." While AW has engaged in extensive public advocacy in favor of a cleanup of Chevron's documented environmental catastrophe in Ecuador, AW has not been directly involved in submitting any evidence, let alone "false evidence," in either the Lago Agrio litigation or the Chevron v. Donziger case. Your email suggests that AW was a participant in one or both of these cases, which is false. AW did not participate in the Chevron v. Donziger litigation, and Judge Kaplan's findings, which are currently being reviewed on appeal, would not be legally binding on Amazon Watch because it was not a party to that litigation.

Third, you sent your emails apparently without regard to what projects had been funded. You have no basis on which to assert that any particular funder's contributions were used by Amazon Watch for its Clean Up Ecuador campaign, which is only one of many Amazon Watch activities.

Ms. Howell's statement might be considered libel, but there's another more specific tort for this context – it's called "interference with business relations." If someone lies to a company that you're doing business with, and the company stops doing business with you as a result, you can be held liable.

Of course, virtually all of AW's funders either ignored Ms. Howell's misinformation entirely or indicated their ongoing support for AW. But Ms. Howell reports that at least one partner – Pura Vida – was taken in by her lies. So both Ms. Howell and The Washington Times might be held responsible for any losses to AW from the loss of their relationship with Pura Vida.

What about libel?

What about libel, indeed? While the initial emails included false information – and therefore might be libelous – most of what's in the final article is simply misleading rather than flat-out lies. For example, Ms. Howell focuses extensively on the fact that AW kept repeating an estimate made by environmental engineer David Russell that the Ecuador cleanup might cost $6 billion, after Russell disavowed the estimate:

In his opinion [Judge] Kaplan faulted Amazon Watch for continuing to use a “flawed” $6 billion estimate to “attempt to convince Chevron that it was facing multibillion-dollar exposure in Ecuador and that the time had come to settle.”

Ms. Howell included part of the response to this (my statement that "Judge Kaplan did not make a factual finding that the cleanup would in fact cost less than $6 billion. In fact, the Ecuadorean court found that it would be more expensive than this"), but still left out some key facts that I had emailed her:

Kaplan's opinion indicates that – a year before he told AW to stop using his damages estimate – Russell "left the LAP team . . . because, among other reasons, the LAP team owed him money and refused to pay it." If you had investigated this, you would also learn that, in his trial testimony, Russell admitted "that after the consultant underwent a falling out with Donziger, Russell turned around and offered his services to Chevron." ( So, you have a consultant who, while he was working for Donziger, did in fact prepare a $6 billion cleanup cost estimate. Then he has a dispute with Donziger over money, he quits, offers his services to Chevron, and disavows his earlier estimate. And you're suggesting that AW's funders are supposed to think they did something wrong by ignoring Russell's about-face and continuing to use the estimate he had prepared? To be clear, Kaplan made no findings about whether Amazon Watch knew or believed Russell's estimate to be false; Amazon Watch was not a party to the Chevron v. Donziger trial.

Even though she did not report the full story, which had been pointed out to her in advance, Ms. Howell's writing here is probably not libelous; it's just biased reporting.

But other statements are more problematic. Ms. Howell writes that "an analysis produced by the accounting firm KPMG concluded that Mr. Donziger’s team and his funders donated over $500,000 to Amazon Watch." As far as I can tell, that's pretty clearly wrong. The KPMG accountant, Troy Dahlberg, submitted testimony that he had "confirmed" payments of $11,181 to AW from the attorneys, and had found some "evidence" of additional payments of $243,173 for which there was no hard evidence. I don't know what the real figure is, but I have no idea where Ms. Howell got her numbers. As far as I can tell, that's false.

Is it libelous? The law breaks libel down into falsehoods that actually harm someone's reputation, and "libel per se" – false statements that are so bad they are presumed to cause harm. This might not be libel per se, because – even though Ms. Howell clearly intended to imply that this is scandalous – there's actually nothing wrong with AW accepting any amount of funds from the Donziger and other lawyers. If, however, it causes some harm to AW (such as if a funder withdraws its support), then Ms. Howell might be liable.

There's another statement, though, that's far worse:

“Amazon Watch is a key player in a fraudulent scheme concocted by a group of lawyers in an attempt to extort billions of dollars from Chevron. They have been paid to promote knowingly false and misleading information about the company to the media, the U.S. Securities and Exchange Commission and government officials in an effort to pressure Chevron into a settlement,” said Morgan Crinklaw, a spokesman for the oil giant.

Now, if that's false (and everything that I know leads me to believe it is), it's libel per se. It doesn't actually matter that Ms. Howell is quoting a Chevron spokesperson. As one newspaper handbook explains, "The fact that a person is quoted accurately is not in itself a defense to a subsequent libel action, if the quoted statement contains false information about someone." The reporter and newspaper are liable for repeating the false statement. That's especially true here, because the falsity of the statement was pointed out to Ms. Howell before she published, so it was deliberate.

To be clear, there's absolutely nothing wrong with "an effort to pressure Chevron into a settlement." And in the only legal proceedings that Amazon Watch actually participated in, a federal court found that " Even if this Court assumes that Amazon Watch was the mouthpiece for [Steven Donziger], there is nothing to suggest that Amazon Watch’s campaigns and speech were more than mere advocacy and were likely to incite or produce imminent lawless action. . . . All that Chevron has shown this Court is that Amazon Watch has been very critical of Chevron’s operations in Ecuador." Ms. Howell knew this, because I told her.

From the beginning of Chevron's campaign against the Ecuador case, they have argued that the entire case is a "fraudulent scheme," as Crinklaw states. They weren't willing to try to prove it at trial, though. While they did try to prove that Steven Donziger had committed misconduct, they made no attempt to show that Chevron was not responsible for massive contamination in Ecuador.

Amazon Watch's campaign against Chevron would only be illegitimate if they knowingly said false things, or if they knew that the whole campaign was an effort to pressure into settling pollution claims that were false. As noted above, the best that AW's critics can do is point to the continued use of a cleanup estimate that 1) was actually issued by the scientist that they attributed it to; 2) was asked to be withdrawn after a dispute over payment of the scientist's bill, after which he switched sides; and 3) was ultimately less than found by the Ecuadorean courts. And the pollution claims aren't false; no court has even suggested that they are.

So, shocking as it may be, we'll continue to stand by Amazon Watch – along with pretty much everyone else.

Thursday, July 16, 2015

Washington Times Echoes Chevron's Lies in Libelous Hit Piece

Amazon Watch and our supporters will not be bullied!

Reposted from Eye on the Amazon

Washington Times Echoes Chevron's Lies in Libelous Hit Piece

As part of an ongoing effort to blur the truth, The Washington Times just published a "hit piece" against Amazon Watch, which has long supported the Ecuadorian communities that were devastated by decades of Chevron's reckless actions for which it has been found guilty in a landmark environmental lawsuit. Biased and misleading, the article is nothing more than another piece of Chevron's ongoing strategy to do anything other than deal with the consequences of its actions in Ecuador and the subsequent toll on the Amazon rainforest and its inhabitants.

When it's impossible to hide a crime, as with Chevron's environmental devastation in Ecuador, corporate criminals have a history of changing the story to vilify the victims and their allies instead of facing the consequences. For Chevron's army of lawyers and multiple PR teams – and more money than some nations – there's no lie too big and no scheme too outlandish.

We first learned of this latest attack a couple months ago when a major contributing foundation received a voicemail from a Washington Times "reporter" asking false and misleading questions. Shortly thereafter, we heard that additional foundations also received biased, pro-Chevron emails from the same "reporter." In her correspondence, Kellan Howell repeatedly omitted the fact that Amazon Watch had successfully defeated all of Chevron's allegations of wrongdoing in federal court. And that's the difference between an investigation and a smear campaign: journalists investigate truth, smear artists propagate lies. Yet, much to Chevron's chagrin, our donors' steadfast support and refusal to be intimidated comes across clearly in the article despite the author's attempts to cast us in a negative light.

Even after it was brought to her attention multiple times, including by our lawyer, Ms. Howell's article completely omits the fact that a US District Court found – rejecting Chevron's argument that Amazon Watch had done anything wrong – that "there is nothing to suggest that Amazon Watch's campaigns and speech were more than mere advocacy and were likely to incite or produce imminent lawless action," and that "[a]ll that Chevron has shown this Court is that Amazon Watch has been very critical of Chevron's operations in Ecuador."

Of course The Washington Times failed to include that vital information because it directly refutes Chevron spokesman Morgan Crinklaw's slanderous statement that Amazon Watch was "paid to promote knowingly false and misleading information about the company to the media, the U.S. Securities and Exchange Commission and government officials…"

In another glaring example of biased reporting The Washington Times deliberately omits the fact that Russell – who issued the $6 billion damage estimate – "left the LAP [plaintiffs'] team . . . because, among other reasons, the LAP team owed him money and refused to pay it." Additionally, Russell admitted that after the consultant underwent a falling out with Donziger, he turned around and offered his services to Chevron. Of course, after Russell left the team the final damage estimates were much higher than $6 billion.

Below is the response Amazon Watch sent to The Washington Times when they reached out to us for comment several weeks after first contacting our donors.

Amazon Watch is proud to accompany the Ecuadorian communities affected by Chevron's deliberate contamination in the Amazon for over a decade. Those communities achieved one of the most important environmental victories in history by winning a $9.5 billion judgement against Chevron for dumping of over 18 billion gallons of toxic waste into the Ecuadorian Amazon. That judgment was affirmed by the Supreme Court of Ecuador in a 222-page decision that meticulously documents Chevron's environmental crimes, fraud, bribery, and subterfuge during the eight-year long trial. During the appeals process, Chevron's bogus claims of fraud were reviewed and dismissed by the higher court in Ecuador.

Chevron's retaliatory RICO suit against Steven Donziger and the Ecuadorian communities is nothing more than an attempt to distract the international community from its actions in Ecuador and attack its critics. We do not consider Judge Kaplan to be in any way qualified to rule on Ecuadorian law much less the specifics of this case when he has no knowledge of the Ecuadorian legal system, does not speak Spanish and never even visited the affected areas.

The Kaplan decision is under appeal and during a recent hearing on April 20th of this year, one of the appellate judges grilled Chevron's lawyers as to why they argued for years to move the trial to Ecuador if they claim now they could never have received a fair hearing there. The truth is that Chevron has never been interested justice in this case; rather its strategy is to litigate in perpetuity and fight until its victims literally die out waiting for justice.

Judge Kaplan demonstrated strong bias against the Ecuadorians, refused to allow a jury, and forbade any evidence of the actual contamination in his courtroom. Chevron's entire case rests upon testimony of a corrupt ex-judge from Ecuador who was paid over $2 million by Chevron to offer a story which is not supported by the facts. In fact, recent evidence provided by the government of Ecuador proves the author of the Ecuadorian judgment was the presiding judge Zambrano and any claims of ghostwriting are false.

Amazon Watch has never committed any unethical or illegal activity, nor has any court determined that we have. Chevron attempted to intimidate and harass us simply because we have been one of their strongest critics and have organized shareholders with billions of dollars of assets under management to pressure the company to do the right thing and clean up Ecuador. Those efforts and this article are part of a premeditated strategy to prevent corporate accountability advocates from holding corporations like Chevron to account.

As part of its intimidation campaign, Chevron did attempt to subpoena Amazon Watch's documents and testimony. In that proceeding, a US District Court found that Chevron had not shown that Amazon Watch had done anything wrong in relation to the Chevron litigation, or that Amazon Watch had engaged in fraudulent conduct or furthered a conspiracy against Chevron. Judge Cousins quashed Chevron's attempts to open up Amazon Watch's files, and found that "there is nothing to suggest that Amazon Watch's campaigns and speech were more than mere advocacy and were likely to incite or produce imminent lawless action," and that "[a]ll that Chevron has shown this Court is that Amazon Watch has been very critical of Chevron's operations in Ecuador."

During Amazon Watch's 19-year history, we have been supported by donations from many thousands of individuals and dozens of institutional funders. Our supporters are proud of and share in our successes to hold Chevron to account and continue to demonstrate that support to this day. Likewise, Amazon Watch has received support from The Sierra Club, Amnesty International, Greenpeace and dozens of other human rights and environmental organizations who have denounced Chevron's legal attacks and infringements upon our free speech and threats to open society.

We are disappointed that The Washington Times would further Chevron's retaliatory acts which lack credibility while it fails to cover the truly important story about Chevron's misdeeds in Ecuador. For example, recent Chevron whistleblower videos show the company finding toxic waste in locations it swore to have fully remediated. This blows the lid off Chevron's already weak defense in Ecuador and proves the company knew people in Ecuador would continue to get sick and die due to its contamination – yet they did nothing to help them.

Furthermore, we object to emails sent by The Washington Times to our funders containing false and misleading information about our activities on this campaign. The Washington Times should strive to accurately report on these issues and its mischaracterizations do an immense disservice to the truth.

Monday, July 6, 2015

Chevron's Greed and Racism Highlighted by BP's $18 Billion Settlement

Reposted from The Chevron Pit

BP's latest settlement for its Gulf of Mexico spill, for the amount of $18.7 billion, further highlights the greed and racism of Chevron for refusing to settle claims over the far worse ecological damage caused by the company to the people of Ecuador's Amazon region.

With the latest settlement, BP estimates its total liability for the 2010 spill to be $54 billion. That's more than five times higher than Chevron's liability for systematically discharging billions of gallons of benzene-lade oil waste into the waterways of Ecuador's Amazon. The dumping happened from 1964 to 1992, when Chevron (operating as Texaco) abruptly pulled out of the country.

Could there be a more brazen illustration of racism and greed than Chevron's despicable refusal to accept responsibility for what it did in Ecuador?

Chevron CEO John Watson has claimed Ecuador's courts gouged the company when they delivered the verdict against the oil giant in 2011. The damages later were upheld in 2013 in a unanimous decision by Ecuador's Supreme Court. To avoid a U.S. jury, Chevron had insisted the trial be held in Ecuador and had accepted jurisdiction there.

While BP compensates its victims in the U.S., Chevron thus far has been able to obtain effective impunity for its crimes against the people of Ecuador. Cancer rates in the affected area have skyrocketed, costing numerous lives. Instead of cleaning up, the company attacks the very villagers it poisoned and sues the lawyers who have led the legal charge demanding adequate compensation.

Chevron's contamination in Ecuador is far more widespread than BP's in the Gulf. It has lasted longer, was planned deliberately, and has decimated indigenous groups. The hard truth is that environmental racism is alive and well in Chevron today and Ecuador is not the only example.

Another is how the company treats the Bay Area community of Richmond. That's where Chevron owns a polluting refinery where a fire recently forced thousands to seek medical attention. When the community stood up to Chevron and demanded changes, the company had the temerity to spend $3 million to fund its own candidates for the town council.

There was a tragic loss of life and a major environmental impact from the Gulf spill. But at least 1,400 people in Ecuador are estimated to have died from cancer and other oil-related diseases. The death toll will rise if there is no clean-up.

Chevron's racism toward the people of Ecuador was on clear display during the trial. Company lawyers proposed that Ecuador's courts adopt a clean-up standard 100 times more lax than that used in its home state of California. For more on how Chevron tried to corrupt the court process in Ecuador, see this sworn affidavit from lawyer Juan Pablo Saenz.

Of course, many of Chevron's victims in Ecuador are indigenous and live in an isolated part of a Third World country. Unlike BP's victims in the U.S., they do not have environmental laws like the Clean Water Act to protect them.

Let's review the facts.

In Ecuador, a major U.S. oil company has refused for almost 50 years to clean up an environmental catastrophe caused by intentional dumping over a period of decades. In the U.S., a British company that had a terrible accident put up $20 billion without as much as a trial and ultimately settled the entire matter for more than $50 billion.

When Chevron CEO Watson claims the Ecuador judgment is too high, what he is really saying is it is unfathomable to him that people in the forest could actually hold his company accountable.

Watson and Donald Trump might have more in common than they realize.