U.S. Appeals Court To Hear Request To Remove Biased Judge In Ecuador Case

Reposted from The Chevron Pit

The Second Circuit Court of Appeals – the same court that stopped cold Chevron's effort to block enforcement of the $19 billion Ecuador judgment in 2012 – has agreed to hear arguments by the Ecuadorians on why U.S. trial court judge Lewis A. Kaplan is continuing to engage in acts of insubordination from the bench.

The decision by the appellate court to hear the arguments is bad news for Kaplan, who already has been overturned once by the Second Circuit for imposing an unprecedented "global injunction” that purported to prohibit indigenous and farmer communities in Ecuador from enforcing a judgment from their own courts anywhere in the world. Kaplan had become the target of worldwide derision for trying to dictate rulings to the courts of other countries. (See press release here.)

The Ecuadorians say Kaplan's efforts to orchestrate a show trial warrant the reassignment of the case, as documented by this previous posting on The Chevron Pit.

Chevron is using the remaining fraud counts it filed against the Ecuadorians and their counsel to try to chill fundamental human rights advocacy that attempts to hold the oil giant accountable for its discharge of billions of gallons of toxic waste into the Amazon, as found by an Ecuadorian court based on overwhelming scientific evidence. Steven Donziger, a longtime American lawyer for the communities, has countersued Chevron for lying and engaging in fraud to cover up its misconduct. (See Donziger's counterclaims here.)

Chevron suffered a major setback recently when a California judge ruled that the environmental group Amazon Watch – known as Chevron's "sharpest critic” – was engaged in First Amendment-protected activity when it criticized the company for its refusal to clean up its contamination in Ecuador. Chevron had tried to subpoena the group's documents, claiming its advocacy was part of an improper pressure campaign. (See an article explaining the decision here.)

The Ecuadorians, meanwhile, have denied Chevron's outrageous charges. The company is desperate to distract attention from advancing seizure lawsuits targeting billions of dollars of assets in Canada, Brazil, and Argentina – with more such actions to come, according to lawyers for the communities.

Kaplan had shocked legal observers with his rants and prejudicial statements from the bench about Ecuador, a longtime U.S. ally where Chevron itself has won multiple lawsuits against the country's state-owned oil company. He derided Ecuador's government and judiciary. He refused to recognize the fundamental humanity of the impoverished indigenous victims, referring to them as the "so-called plaintiffs" and urging Chevron to file a racketeering and extortion case.  See this previous Chevron Pit.

To top it all off, Chevron lawyer Randy Mastro literally was laughed out of court when he couldn't answer fundamental questions before the appellate panel. See here. Mastro's effort to protect Kaplan was an utter failure.

Kaplan's tendency to engage in judicial imperialism has once again reared its ugly head. He is now setting up Chevron's so-called "RICO” case as nothing more than a show trial, stripping the ability of the plaintiffs to put on evidence of Chevron's toxic dumping and fraudulent cover-up while purporting to rule (in defiance of the earlier Second Circuit order) on the legitimacy of Ecuador's judiciary.

That's the same judiciary that Chevron praised when it fought for ten years to venue the trial there after the Ecuadorians originally filed the case in New York.

A trial by jury has been set by Kaplan for October 15th. But we say that neither Chevron nor Kaplan really have the guts to risk a full-blown trial before a jury where the truth can come out. Kaplan and Chevron will try to figure out a way to prevent jurors from hearing the case – possibly by dropping monetary claims for damages, thereby allowing a bench trial.  If jurors do hear the case, Kaplan won't let the Ecuadorians put on evidence of Chevron's crimes and fraudulent cover-up.

But wait – isn't a bench trial by Kaplan what the Second Circuit vacated the first time?

Kaplan and Chevron are now operating from a smaller and smaller box, with their options to impede a final recovery constricting almost weekly. Meanwhile, Mastro and his team of 114 lawyers at Gibson Dunn & Crutcher are on a roller coaster ride of unprecedented billing excess, subsidized by Chevron shareholders who themselves are being duped by Chevron management, as this devastating report by securities lawyer Graham Erion points out.

Gibson Dunn lawyers are laughing all the way to the bank while piling up a string of setbacks for their client, whose management is either too obtuse or personally conflicted to understand the peril they are facing.

In their petition, the Ecuadorians argue that in the earlier reversal the appellate court found that Kaplan did not have jurisdiction to rule on the Ecuador judgment unless the Ecuadorians sought to enforce the judgment in a New York court – a legal move that the Ecuadorians have not taken and have said they will not take. Yet Kaplan continues to claim in various rulings he can still so dictate, in defiance of the appellate court.

We remind Judge Kaplan of the words written by the Second Circuit in 2011:

"The (Ecuadorians) hold a judgment from an Ecuadorian court. They may seek to enforce that judgment in any country in the world where Chevron has assets. There is no indication that they will select New York as one of the jurisdictions in which they will undertake enforcement efforts . . . . It is unclear what is to be gained by provoking a decision about the effect in New York of a foreign judgment that may never be presented in New York. If such an advisory opinion were available, any losing party in litigation anywhere in the world with assets in New York could seek to litigate the validity of the foreign judgment in this jurisdiction. . . . Chevron can present its defense to the recognition and enforcement of the Ecuadorian judgment in New York if, as and when the (Ecuadorians) seek to enforce their judgment in New York."

More Revelations About Chevron's Paid Witness & Its Miami Lawyer, Andres Rivero

Reposted from The Chevron Pit

Chevron not only is lying to a U.S. court about what happened in the historic Ecuadorian trial that the oil giant lost, it also offered a $1 million bribe to turn evidence against the Ecuadorians and their lawyers, testified an Ecuador judge in a legal declaration filed yesterday in the Southern District Court of New York.

Ecuador Judge Nicolás Zambrano, who found Chevron guilty in February 2011 of the world's largest oil-related environmental disaster, submitted the filing to a U.S. court, in response to false charges brought by Chevron that Zambrano allowed the Ecuadorians' lawyers to write his judgment for payment.

Zambrano said in his declaration that only he wrote the detailed 188-page ruling, documenting the extensive contamination of Chevron's substandard drilling and exploratory system wrought upon the environment and the impoverished indigenous people living near the pollution. Chevron has argued that Zambrano was incapable of writing such a judgment and has entered into evidence testimony by another judge, Alberto Guerra, that the real authors are the Ecuadorians' lawyers.

Only problem is Guerra has been paid at least $324,000 for his testimony and likely will be paid much, much more, given the unbelievable agreement Chevron has negotiated with Guerra, who now lives in Miami with his family and his son's family – all at Chevron's expense.

Importantly, Chevron's own lawyers have admitted that Guerra actually approached Chevron in 2009 about writing the judgment in its favor if they would pay him.

Not surprisingly, about that time, Guerra announced publicly that he thought the lawsuit against Chevron was not legitimate, even though the trial was underway.

Also underway at the same time was a Chevron sting operation to derail the trial by staging a phony bribery attempt against yet another judge who heard the case. It failed miserably, but Chevron spent much of the year organizing it and publicizing its sensational but false allegations of bribes.

At no time in 2009, 2010 and 2011, during years of hysterically wild accusations of corruption and fraud charged by Chevron, did the oil giant breathe a word about Guerra offering to write the judgment for Chevron for money.

If Chevron wanted to prove that the Ecuador courts were corrupt, here was its perfect opportunity. Yet, Chevron's lawyers, not known for avoiding a media interview in Quito, were silent.

Now Zambrano reveals that Guerra as Chevron's proxy approached him in August 2012 with an offer to turn evidence against the Ecuadorians' lawyers for $1 million or as much money as Zambrano might want.

Zambrano rejected the offer then and later avoided overtures in January 2013 by Chevron lawyer Andres Rivero who called Zambrano and urged a meeting. Zambrano refused.

The 20-year-old case, now being litigated to seize Chevron's assets in Brazil, Argentina, Canada and Ecuador as payment for the judgment, continues to take twists and turns in a U.S. court, both sides slinging charges fast and furious.

But, there are two charges that even Chevron cannot deny:

One: Chevron's man, Alberto Guerra, will say whatever the highest bidder pays.

And, two: Texaco, which Chevron bought, dumped 16 billion gallons of toxic water and oil directly into the rainforest waterways and built 900 unlined pits and filled them with pure crude that has leeched into soil and underground water – all because it wanted to save money. Chevron's company treated the rainforest like a garbage dump and its people as disposable as the toxic oil it left behind.

We Beat Chevron, but the Fight for Real Justice Continues

Reposted from Eye on the Amazon

At one point or another every social justice activist wakes up wondering if we stand a chance against the massive forces acting against us. This week, my faith in justice was given a boost when Amazon Watch won a major victory in the face of Chevron's massive legal efforts against us. In U.S. Federal Court on Wednesday, Chevron's efforts to significantly disrupt our work and threaten our ability to campaign against their reprehensible actions in Ecuador were entirely quashed.

Several months ago I wrote about being served a subpoena on my front doorstep by one of Chevron's 60 law firms – Gibson Dunn & Crutcher. Chevron has falsely accused Amazon Watch of participating in a "massive global conspiracy" against the company because we have stood with the communities fighting for justice in Ecuador for almost two decades. As part of their scorched earth legal strategy, Chevron is attacking virtually anyone and everyone who has spoken out about Chevron's misdeeds in Ecuador. As this post by our heroic legal support team at EarthRights International explains, "Chevron has also sought discovery from journalists, activists, lawyers, and even from its own shareholders."

Yet, even after obtaining hundreds of thousands of documents from other parties and hundred of hours of depositions, they had not a shred of evidence that Amazon Watch has done anything wrong. Of course not. Because we haven't.

But we have had the nerve speak out year after year about their crimes and to organize shareholder pressure to push for responsible action. That's why in court our lawyer proudly referred to us as Chevron's "sharpest critic." What Chevron has actually sought to do is strip the communities in Ecuador of an ally in their fight, but Amazon Watch is not about to abandon our partners – those communities brave enough to take on the second largest oil company in the United States – and win.

There have been major setbacks in efforts to control corporate power in a post-Citizens United America. Imagine the consequences if large corporations were able to force those working hardest to keep them accountable to turn over all their contacts, private information, strategies and internal communications.

During Wednesday's hearing Ethan Dettmer, Chevron's lawyer from Gibson Dunn, specifically cited Amazon Watch as having created "petitions and demonstrations" as acts threatening to Chevron. Thankfully, their attorney was shut down mid-sentence by Judge Cousins who told him told that those are exactly the free speech rights we must protect.

Never forget: This entire legal effort is designed to keep the world from remembering the truth about Chevron in Ecuador. From remembering what Amazon Watch has been saying, and will continue to say to investors and shareholders, the media, governments, and communities everywhere – that Chevron:

• Deliberately dumped billions of gallons of toxic foundation waters into the pristine Amazon rainforest over the course of decades.
• Chose to pollute the rivers and streams and created a massive health crisis for the indigenous and local communities.
• Has never accepted responsibility for their acts or taken effective efforts to clean up their waste nor to assist the tens of thousands who suffer from the contaminated environment.

We won a great victory in court this week, but we didn't win anything for those still suffering from Chevron's actions. We didn't win clean water, we didn't win improved health care, we didn't win a full-scale remediation of the toxic sludge Chevron deliberately dumped. But we did preserve our right to continue to pressure Chevron with the truth of their actions. We did preserve our ability to exercise our right to free speech and to be a watchdog against corporate crimes. That right is vital to protect the power of the people in our society. We will exercise that right until we DO win the things Amazonian communities in Ecuador need most.

Yes, Chevron can throw millions of dollars and thousands of lawyers at the problem and hope that they escape justice. They can overwhelm, bully, and intimidate critics by their sheer size and wealth. But this week they learned they won't always get away with it.

Victory! Judge Thwarts Chevron's Attempt to Open Amazon Watch's Confidential Files

Reposted from EarthRights International

Yesterday, in a major victory for our friends at Amazon Watch (AW) and ERI’s legal team, a Federal Judge in California quashed two sweeping subpoenas issued to AW by Chevron Corporation. ERI, serving as AW’s lawyers, successfully argued that the subpoenas violated Amazon Watch’s First Amendment rights and were unduly burdensome and intended to harass one of Chevron’s public critics.

Amazon Watch is a nonprofit organization dedicated to promoting justice for indigenous groups in the Amazon. For more than a decade, Amazon Watch has been publicly critical of Chevron’s legacy of pollution, which has harmed the health and the environment of thousands of villagers in the Ecuadorian Amazon. The subpoenas sought AW’s internal documents and testimony related to its advocacy campaign against Chevron.

Since December, ERI has been defending Amazon Watch against Chevron’s effort to gain access to Amazon Watch’s campaign playbook. The task hasn’t always been easy, since ERI and Amazon Watch were up against Chevron’s army of lawyers.

The subpoenas were issued in connection with Chevron’s efforts to avoid an $18 billion judgment issued in 2011 by a court in Ecuador against the company for dumping toxic waste into Amazon waterways used by indigenous groups for drinking water. Chevron has refused to pay. Instead, it filed a civil racketeering (RICO) suit in New York against the Ecuadorian Plaintiffs, their counsel, and other individuals involved in the effort to hold Chevron accountable, claiming a global conspiracy to obtain a fraudulent judgment against Chevron. According to Chevron, this "global conspiracy" includes, academics, New York State officials, environmental consultants, activists, law firms, indigenous communities and two Ecuadorian courts.

As part of its lawsuit in New York, Chevron has sought intrusive discovery from those, including AW, who have dared to speak out about its activities in the Amazon. It has already received unprecedented discovery from parties to the litigation and a number of non-parties. The company has issued more than 100 subpoenas requesting documents and already conducted more than 320 hours of depositions, including more than 16 days from Steven Donziger, the alleged mastermind of the "conspiracy." Chevron has also sought discovery from journalists, activists, lawyers, and even from its own shareholders.

Although Chevron has falsely branded Amazon Watch as a "co-conspirator," Chevron could not and cannot provide any evidence of wrongdoing by Amazon Watch. Indeed, Amazon Watch has done no more than participate in an advocacy campaign critical of Chevron – exactly what the First Amendment protects.

Yesterday, the court in San Francisco reminded Chevron of this simple truth. Ruling from the bench to quash Chevron’s subpoenas, U.S. Magistrate Judge Nathanael Cousins said he had to balance the First Amendment rights of Amazon Watch against Chevron’s alleged need for discovery, and noted that Chevron had not tailored its requests to avoid infringing on AW’s free speech rights.

ERI awaits Magistrate Judge Cousins’s written ruling.

Take That Chevron: There's A First Amendment After All

Reposted from The Chevron Pit

Chevron took a severe punch yesterday in its home state of California when a judge there ruled to ditch the oil giant's subpoena against an environmental group that has been highly critical of the company concerning its massive contamination of the Ecuadorian rainforest. See the Reuters story here.

"I must err on the side of protecting the First Amendment activity," wrote California Magistrate Judge Nathanael Cousins.

The subpoena request results from a Chevron lawsuit in a New York court, where the company is arguing that Amazon Watch and others, including Chevron's own shareholders, are part of a grand conspiracy to "extort" money from it by applying public pressure through protests, advocacy in front of elected officials and negative media coverage.

Memo to Chevron: The First Amendment is in the Bill of Rights.