BusinessWeek Demonstrates Why It's Better for Your Lawyers to Believe in Your Case

Reposted from EarthRights International

Yesterday, BusinessWeek picked up on Michelle's blog post from last week highlighting the inconsistent positions taken by Gibson Dunn, the law firm that represents Chevron, on an issue that is central to Chevron's case against attorney Steven Donziger. Paul Barrett's article confirms that Gibson Dunn is arguing both sides of the issue, but says that this isn't a problem because "That, for better or worse, is what lawyers do." Perhaps unintentionally, Barrett makes a pretty strong case for why you want lawyers who believe in your case.

Barrett has done us a service in confirming that, according to Gibson Dunn, Chevron allowed their lawyers to argue against them in another case. So Gibson Dunn may not be unethical, but Chevron might be a little stupid. Barrett also conveniently overlooks the fact that Gibson Dunn is not simply taking different positions in different cases – it's arguing against Chevron's position in another case that, because it is at the Second Circuit Court of Appeals, will be binding on the lower court deciding the Chevron case.

Barrett is right that the rules allow Gibson Dunn to take a position in one case that could harm or even destroy their legal position in the Chevron v. Donziger lawsuit, as long as Chevron agrees. Doing so, however, doesn't bolster their credibility. It's generally more effective to convince a judge that you actually believe in the position you're taking, not that you'll simply "argue either way, depending on the interests of whoever is paying [your] bill," as Barrett describes it.

As lawyers who take cases that we believe in, arguing positions that we believe are correct, I and my co-counsel don't have to face the dilemma that Gibson Dunn faces – and we don't face judges who are skeptical of our positions because they think we're simply hired guns. Sure the rules allow us to argue any position supported by the law, but if it were your case, wouldn't you want lawyers who actually believed what they were saying?

Chevron: "Let Them Eat Pizza!"

Reposted from Eye on the Amazon

Would people really offer a coupon for a free pizza and soda to families who just had a gas well blow up in their community, killing a worker and burning for days? People did.

In a move that would make Montgomery Burns proud, Chevron "apologized" to the community for the massive explosion of their fracking well in rural Pennsylvania by offering each affected family a coupon for free pizza from a local pizza joint.

This is one of those rare glimpses into a corporation's ethos, or lack thereof. Somewhere inside Chevron the decision was made that a $12 large pizza and a two-liter soda was proper compensation, or at least sufficient to pacify people for the "inconvenience" of having a huge explosion and toxic fire in their neighborhood. We called Bobtown Pizza this morning (with a story like this, you really gotta hear it for yourself to believe it) and at this point they are just wishing this whole thing would "blow over" (no pun intended).

Chevron's attitude in the US in 2014 has barely evolved from their attitude in 1964 in Ecuador's Amazon rainforest. Back then Chevron told villagers that oil was good for them, to rub it on their joints for arthritis! They sprayed it on the roads to keep down the dust and people walked on it for years, shoeless. All the while they were dumping billions of gallons of toxic waste into pits that drained directly into waterways used for drinking and bathing. Could they get away with that in Pennsylvania today? If it turns out that communities can no longer drink their tap water due to Chevron's fracking, will the company send them coupons for a case of Diet Mountain Dew?

We're not easily surprised by Chevron spokespeople saying horrific and ludicrous things anymore, but this was so tone-deaf that even we were impressed. We haven't been so in awe of Chevron's insensitive hubris since Sylvia Garrigo dismissed Ecuadorians' cancer and other severe oil-related health issues on 60 Minutes by saying, "I have makeup on, and there's naturally occurring oil on my face. Doesn't mean that I'm going to get sick from it." Check out this video, Great Moments In Stupid Chevron PR, for similar outrageous statements.

The friendly, unsuspecting people at Bobtown Pizza are bearing the brunt of complaints and crank calls due to community outrage. We'd suggest that unhappy citizens instead contact Chevron toll-free. Bobtown Pizza never expected a national backlash and coverage from CNN, Newsweek, and others, but they also weren't aware that Chevron is the largest corporate criminal on the run and on the hook for $9.5 billion in Ecuador. They didn't know that Chevron's Richmond refinery blew up not long ago and that they violated 62 EPA regulations there. They didn't know that over 40 environmental and human rights NGOs recently condemned Chevron's actions and over 100,000 people have sent messages to the US Senate to complain about their abusive legal tactics.

And Chevron, just in case you were wondering, the 30,000 Ecuadorians who sued you for polluting their homes and fouling their future will not be appeased by an order of empanadas and a six-pack of Inca Kola.

We Will Never Forget

Reposted from Eye on the Amazon

Today is the third anniversary of what could be one of the most important triumphs of indigenous rights over Big Oil in world history.

On Valentine's Day three years ago, an Ecuadorian court found Chevron liable for deliberately dumping billions of gallons of toxic waste into the Amazon rainforest of the South American nation. The court imposed $9 billion in damages and added another $9 billion in punitive damages for its cynical efforts to "undermine the administration of justice" in the country.

That decision – the largest civil trial judgment in history at the time – was a testament to the vision, tenacity, and intelligence of dozens of indigenous and farmer communities in Ecuador's northeast rainforest region known as the Oriente. Against all odds, communities struggled for years to hold the company accountable – a company whose reckless impunity devastated the health, livelihoods and environment for countless innocent people.

When Texaco (now Chevron) arrived in the Oriente in 1964, the region was home to indigenous tribes for whom the pristine rainforest was their grocery store, their pharmacy, their church and home to their ancestors. By the time Chevron pulled out of Ecuador in 1992, the area was scarred with roads and pipelines, oil spills and abandoned toxic waste pits, the forest and peoples poisoned in pursuit of profit.

"Before I die they have to pay me for the dead animals, and for what they did to the river, and the water and the earth," Maria Aguinda told AFP shortly after the historic verdict was delivered against Chevron in 2011. An elder of the indigenous Kichwa people who lives in the oil-besieged village of Rumipamba, Aguinda is the namesake for the original class-action lawsuit, Maria Aguinda, et al v. Texaco, Inc.

Originally filed in New York, then headquarters of Texaco, the eight-year trial took place after a decade-long battle in U.S. courts where the company argued the case should be tried in Ecuador, figuring that the communities and their advocates would give up. They never did.

Despite Chevron's threats and bribery attempts aimed at judges, deceptive soil sampling and evidence-tampering, and all sorts of attempts to use political pressure to quash the case, the historic verdict against the company was delivered, vindicating all of those who fought for so long to bring the oil giant to justice. That judgment has since been affirmed twice, most recently by Ecuador's Supreme Court (which eliminated the punitive damages, leaving Chevron nonetheless liable for $9.5 billion in damages owed to the long-suffering communities living amidst the contamination it left behind).

Today, on the 3rd anniversary of the court ruling, we salute the nationalities that have organized and fought to hold Chevron accountable: the Cofán, Siona, Secoya, Kichwa and Waorani. We salute their Ecuadorian legal team and allies around the world, including Goldman Prize winners Luis Yanza and Pablo Fajardo. We salute the Frente de la Defensa de Amazonia and the Unión de Afectados por las Operaciones de Texaco, and all of the inspiring efforts undertaken by the affected communities to organize, maintain unity, and press on in their quest for justice.

Today, of course, their – and our – quest for justice continues. In anticipation of an adverse ruling from the Ecuador courts, Chevron stripped its assets from the country, and a company spokesperson famously declared, "We'll fight this until hell freezes over. And then we'll fight it out on the ice."

So now, the victims of the company's pollution have to pursue Chevron around the world, a corporate fugitive from justice whose executives and board members glide in and out of the halls of power wherever they go.

But despite an abusive and ridiculous retaliatory RICO lawsuit against its victims and their advocates, the communities press on. In December, a Canadian judge noted the company's comment about "fighting it out on the ice," writing in a court order that "Chevron's wish is granted," green-lighting enforcement proceedings in Ontario courts against Chevron assets in Canada to pay for the damages in Ecuador.

As the legal battle continues, let's not forget one basic fact: the villagers have won. The litigation is over. The Ecuadorian court order has been upheld. And the communities, their advocates, and their allies show no sign of giving up.

But as the legal axiom goes, justice delayed is justice denied. For the sake of Maria Aguinda and thousands more like her who have lost loved ones to cancer and who suffer oil-related illness, whose lives have been upended by an American company's greed, let us today re-commit to fighting until the people of the Ecuadorian Amazon get the relief they have sought for too long already.

How Chevron Might Have a Lawsuit Against Its Own Law Firm for Blowing the RICO Case

Reposted from The Chevron Pit

Chevron's "Dream Team" at the Gibson Dunn law firm has yet to come up with an explanation for its monumental mistake last week in undermining the company's RICO case against Ecuadorian villagers and their lawyers.  Chevron's team leader at Gibson Dunn, partner Randy Mastro, usually loves spinning to the media.  But even he has gone radio silent.

Last Friday, another partner at Gibson Dunn – Harvard Law School graduate Miguel Estrada – argued before a panel of judges from the 2nd Circuit Court of Appeals in Manhattan. The case being heard that day had nothing to do with the plight of Ecuadorians living with the toxic legacy of Chevron's pump-and-dump oil operations in their rainforest lands.

But the hearing itself – or at least one of the key arguments made – may have an enormous impact on the Chevron-Ecuador case.

From the blog of DC-based EarthRights International yesterday:

Chevron probably isn't too happy with Randy Mastro and the rest of its dream team at Gibson Dunn & Crutcher right now. Gibson Dunn represents Chevron in its “sue the victims” case against a group of Ecuadorian villagers and their attorneys. The Ecuadorians won a $9.5 billion judgment in Ecuador against the company for massive pollution, and Chevron retaliated by filing a law suit under the Racketeering and Corrupt Organizations Act (RICO), claiming the Ecuadorian judgment was obtained through fraud.

Last week, however, in a completely separate case, Gibson Dunn may have shot the Chevron case in the foot, arguing to the Second Circuit Court of Appeals that a private party can't seek an injunction under RICO. This is the opposite of the argument they've made in Chevron's RICO lawsuit in the district court in New York.

Of course, in its retaliatory RICO lawsuit against the Ecuadorians and their longtime legal advocate Steven Donziger, Chevron is in fact seeking an injunction.

As Donziger told Law360 last week:

Chevron made three strategic decisions that together strip it of standing: refusing to challenge its liability for the pollution in Ecuador, dropping its damages claim in order to escape a jury trial and asking for a tailored injunction that only blocks Donziger and his Ecuadorean co-defendants from a cut of the multibillion-dollar judgment, rather than a worldwide anti-enforcement injunction.

Donziger and the Ecuadorians have argued all along that the RICO statute does not permit private parties to seek injunctive relief. Of course, Chevron – or more accurately, Gibson Dunn's Mastro – has repeatedly argued the opposite. Meanwhile, Judge Lewis A. Kaplan, who has brazenly promoted the Chevron RICO lawsuit, seems to think it's an open question. 

Back to EarthRights International's recent post:

If it is indeed an open question, it may not be open for much longer.

Last Friday, in Sykes v. Mel Harris, Gibson Dunn urged the Second Circuit to “confirm that private RICO claims for injunctive relief fail as a matter of law – in other words, private plaintiffs cannot seek injunctions under RICO. If Gibson Dunn wins that argument, the decision will control Chevron's case against Donziger and will doom Chevron in the lower court.

This, of course is a major Catch-22 for Chevron, as reporter Adam Klasfeld at Courthouse News wrote last week.  Klasfeld concluded that Gibson Dunn's Estrada could "scuttle [Chevron's] efforts" to fight off its $9.5 billion liability in the Ecuador case.

Klasfeld's article concludes with a quote from Christopher Gowen, a professor of ethics at the Washington College of Law at The American University in Washington, D.C.  a member of Donziger's legal team, Gowen said:

"Gibson Dunn is correct to argue that there is no injunctive relief for a private party under the RICO statute," said Gowen, who serves as a legal ethics professor at American University. "The problem for the firm is that by doing so they acknowledge that their prosecution of the Chevron v. Donziger case has been a complete waste of their client's time and money and an abuse of the civil justice system. While I was troubled by the ethical conduct of Gibson Dunn on behalf of Chevron throughout the trial, I never imagined a day where their unethical conduct would destroy their own client's case."

The EarthRights blog points out that Gibson Dunn has a conflict of interest. And the party with standing to complain is none other than Chevron, the oil company that reportedly has paid the firm in excess of $1 billion for its work on the Ecuador case. EarthRights points out that Chevron might have a whopper of a legal claim against none other than Mastro and his partners.

That would be the ultimate poetic justice: Mastro himself might have to pay part of Chevron's obligations to its victims in Ecuador, should the villagers succeed in recovering their judgment.

For additional analysis on this shocking development, read this press release from Donziger's law firm:

Chevron Law Firm Gibson Dunn Concedes that Legal Basis for RICO Case Against Ecuadorians Is Invalid

And this legal motion filed recently by Donziger and his counsel in the RICO case:

Reply Motion in Support of Donziger's Motion to Dismiss

In the above Reply Motion, Deepak Gupta, Steven Donziger's appellate lawyer, attached Gibson Dunn's Merits Brief in the Sykes v. Mel Harris case in which Gibson Dunn's Estrada spells out exactly why private parties cannot seek injunctive relief under RICO.

Advice to Gibson Dunn: Mr. Estrada and Mr. Mastro need to be re-educated about their ethical obligations.

Chevron's Own Lawyers Jeopardize Fate of Chevron-Ecuador RICO Lawsuit

Reposted from EarthRights International

Chevron probably isn't too happy with Randy Mastro and the rest of its dream team at Gibson Dunn & Crutcher right now. Gibson Dunn represents Chevron in its “sue the victims” case against a group of Ecuadorian villagers and their attorneys. The Ecuadorians won a $9.5 billion judgment in Ecuador against the company for massive pollution, and Chevron retaliated by filing a law suit under the Racketeering and Corrupt Organizations Act (RICO), claiming the Ecuadorian judgment was obtained through fraud.

Last week, however, in a completely separate case, Gibson Dunn may have shot the Chevron case in the foot, arguing to the Second Circuit Court of Appeals that a private party can't seek an injunction under RICO. This is the opposite of the argument they've made in Chevron's RICO lawsuit in the district court in New York.

In that case, Chevron is seeking an injunction to prohibit the Ecuadorians from collecting on the Ecuador judgment. (The company initially sued for money damages as well, but dropped the damages claims on the eve of trial to avoid a jury trial.) Donziger and the Ecuadorians have argued that private parties like Chevron aren't allowed to seek injunctions under RICO, while Gibson Dunn, on behalf of Chevron, has repeatedly argued the opposite. Judge Kaplan has indicated that he thinks this question is open to debate.

If it is indeed an open question, it may not be open for much longer.

Last Friday, in Sykes v. Mel Harris, Gibson Dunn urged the Second Circuit to “confirm that private RICO claims for injunctive relief fail as a matter of law” – in other words, private plaintiffs cannot seek injunctions under RICO. If Gibson Dunn wins that argument, the decision will control Chevron's case against Donziger and will doom Chevron in the lower court.

Has Gibson Dunn run afoul of the New York Rules of Professional Conduct? While Rule 1.7 allows lawyers to take inconsistent legal positions in different tribunals on behalf of different clients, commentary to this rule expressly notes that a conflict of interest exists “when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.” That certainly sounds like what could happen here.

If, however, Chevron agreed that Gibson Dunn could make this argument in its other case, then there isn't technically a conflict of interest for the lawyers. Given that Chevron has reportedly paid the firm well over $1 billion since 2009, I imagine they would have ran it by the oil giant. But why would Chevron – which has redefined “no holds barred” in its legal assault on the Ecuadorians and their advocates – agree that its lawyers could undermine its own legal position? If, in fact, Chevron didn't give Gibson Dunn the green light, then the next phase of this never-ending litigation may see Chevron suing its own lawyers.