Monday, October 16, 2017

Chevron Lawyer Larry Lowenstein Continues to Mislead Canadian Courts About Company's Fraud in Ecuador

Reposted from The Chevron Pit

To help Chevron block enforcement of the Ecuador environment judgment in Canada, company lawyer and Osler partner Larry Lowenstein flat-out lied last week to a panel of three judges on the Ontario Court of Appeal in Toronto. It is the vulnerable indigenous communities in Ecuador who pay the price for Lowenstein's bad form in service of one of the world's worst corporate polluters.

Lowenstein's partners at Osler naturally claim they run one of the leading business law firms in Canada. If misleading courts and shareholders on behalf of clients is how Osler gets its business, as Lowenstein seems to think, then those partners might need to rethink their marketing model.

Lowenstein made an interesting cameo for Chevron last Wednesday before the appeals panel in Toronto that heard argument over a $1 million costs order the oil major is trying to impose on the impoverished indigenous groups it poisoned. Those indigenous groups in 2013 won a $9.5 billion environmental judgment against Chevron, as determined by three layers of courts in Ecuador in the venue where the company insisted the trial be held and where it had accepted jurisdiction.

Since then, Chevron has hired 60 law firms and used roughly 2,000 lawyers to evade paying the judgment. It sued an American human rights lawyer for the Ecuadorians for $60 billion before dropping all money damages claims on the eve of trial. It is now suing the same lawyer (Steven Donziger) for $33 million in fees, trying to bankrupt him. (For background, see here.)

This is how Chevron rolls. And without lawyers willing to do its bidding, Chevron could never get away with such blatant misconduct.

Chevron's attempt to impose a costs order in Canada is a vital part of the company's global intimidation model. It is a brazen attempt to close the courthouse doors to the very people who are trying to collect a judgment Chevron owes that will be used to clean up the horrific contamination the company left on their ancestral lands. This is in consistent with a threat Chevron made in 2009 promising the indigenous groups "a lifetime of litigation" if they continued to pursue their claims.

"We will fight this case until hell freezes over, and then we will fight it out on the ice," said Charles James, Chevron's former General Counsel.

As the latest front man for Chevron's impunity campaign in Canada, Lowenstein claimed to the appeals panel that the Ecuador judgment was based on an "egregious fraud" because that's what a pro-business U.S. judge, Lewis A. Kaplan, determined after a lopsided "racketeering" trial held in 2013 where the court refused to consider any evidence of Chevron's environmental contamination. Kaplan also held undisclosed investments in Chevron during the trial, which for a myriad of reasons was called a "Dickensian farce" by noted U.S. trial lawyer John Keker.

(Here is a detailed press release and a 33-page report documenting Kaplan's erroneous findings.)

In making his argument, Lowenstein lied about the overwhelming evidence against Chevron in the Ecuador proceeding, ignored the false testimony that Kaplan credited in the RICO matter, and covered up evidence of Chevron's fraud in both Ecuador and the United States to try to distract attention from the company's liability.

Consider what Lowenstein failed to mention about Chevron's role in creating an environmental and humanitarian catastrophe in Ecuador so massive it is called the "Amazon Chernobyl" by locals:

  • Chevron was found by three layers of courts in Ecuador to have dumped billions of gallons of oil waste into the rainforest over a two-decade period, decimating indigenous groups and causing numerous cancer deaths. The court decisions were based on 105 technical evidentiary reports. Here is a summary of the overwhelming evidence; a legal brief that explains the history of the company's dumping and cover-up; and a summary of the high cancer rates.
  • Initially sued by indigenous villagers in New York in 1993, Chevron praised Ecuador's justice system thinking it could engineer a political dismissal of the case by shifting it to the South American nation. With the scientific evidence mounting in its preferred forum of Ecuador, Chevron sold its assets to evade paying the judgment.
  • Ultimately, Chevron was ordered to pay $9.5 billion in damages and costs. This amount is a pittance compared to the roughly $50 billion BP has paid for its much smaller Gulf of Mexico spill in 2010.
  • Chevron retaliated by suing the indigenous groups and their lawyers before Kaplan, who invited the company to file the action. Chevron then made a mockery of justice with Kaplan's blessing, dropping all damages claims on the eve of trial to avoid a jury. Chevron also bribed a witness with $2 million to claim that the judgment in Ecuador was "ghostwritten" – testimony that since has been proven false but was nontheless credited by Kaplan.
  • The bribed Chevron witness, Alberto Guerra, later admitted that he repeatedly lied under oath before Kaplan. Separately, a forensic examination by the American expert J. Christopher Racich demonstrated that the Ecuador trial judge wrote the decision on his office computer, contradicting Guerra's false claim that it had been given to the trial judge on a flash drive.
  • In total, 18 judges appellate judges in Ecuador and Canada have ruled in favor of the villagers and rejected Chevron's "fraud" claims. Yet Lowenstein refers only to a rogue decision from one U.S. judge who relied on false evidence for his findings in favor of the company. (The Second Circuit Court of Appeals refused to review those erroneous findings, as did the U.S. Supreme Court.) Lowenstein also ignores that 17 prominent human rights groups and 19 international law scholars have sided with the indigenous groups against Chevron.

Because of its corrupt acts and disdain for the rule of law, Chevron now finds itself in serious trouble. It faces possible criminal and civil jeopardy for its cover-up in addition to its $12 billion environmental liability (rising $300 million per year because of interest) to the people of Ecuador. Company management also faces a shareholder revolt over its unethical behavior.

Another big Lowenstein whopper before the Toronto appeals court came when he claimed that Donziger, one of the American lawyers for the villagers, "controls" monies that will be deposited in trust for a clean-up.The trust is actually controlled by the affected communities, not their lawyers.

Lowenstein's delightful little speech reminded us of the bit part played by a professor from Notre Dame who also allowed himself to be used by Chevron for money. That professor, Douglas Cassell, was slapped down by Notre Dame's administration for hiding the fact he was shilling for the oil giant while trying to act like a disinterested scholar. For background, see here.

The personal reputation of Lowenstein, and by extension that of the Osler partnership, is in play. The American law firm Gibson Dunn suffered a huge setback for its own unethical work of behalf of Chevron. Osler obviously is Chevron's answer to Gibson Dunn in Canada – a law firm with a willingness to cross the ethical line in "service" of a client engaging in criminal misconduct.

Lowenstein and his partners might make amends by disclosing how much the firm charges to engage in a representation that includes the distortion of facts and the misleading of courts on behalf of a human rights abuser.

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