Appellate Counsel for Chevron's Foes Tapped Ahead of Verdict
WASHINGTON (CN) - Awaiting a verdict in Chevron's extortion case over a $9.5 billion environmental judgment, advocates for its Ecuadorean opponents said Thursday that they have renewed their legislative lobbying efforts, hired their appellate counsel and filed a yet another motion to dismiss.
In 2011, a court in Lago Agrio, Ecuador, ordered Chevron to pay billions to repair environmental damage and public health issues in the rainforest region of Sucombios, where its predecessor Texaco drilled for decades.
Chevron claimed that U.S.-based lawyers who spearheaded the trial in Ecuador corrupted the case by bribing a judge, ghostwriting the judgment and fixing the scientific studies. The company skewered attorney Steven Donziger in particular, as well as his co-counsel and his indigenous clients, in a federal complaint filed in Manhattan days before the Ecuadorean ruling.
Denying the allegations, Donziger cast Chevron's litigation as a corporate retaliation campaign meant to scare off those who would pursue human rights litigation against U.S. corporations. He was the lead defendant in Chevron's lawsuit, which came to a head with a seven-week trial that ended in late November. The parties recently finished submitting post-trial briefs, and the voluminous record of the case means a verdict is far from imminent.
Donziger and his colleagues nevertheless have made no secret of expecting to lose in the court of U.S. District Judge Lewis Kaplan, whom the Ecuadoreans have repeatedly and unsuccessfully accused of bias. All but two of Donziger's former Ecuadorean clients - mostly indigenous rainforest dwellers and farmers - boycotted the proceedings.
The Sierra Club hosted a conference about the case Thursday at its Washington, D.C., offices.
Fresh from a visit to Ecuador, Donziger said that oil damage had been "eminently visible to the naked eye" outside a production facility in the village of San Carlos. He noted that Judge Kaplan deemed the pollution irrelevant to the trial in New York.
"This charade must end," Donziger said, announcing that he already has retained his appellate lawyer Deepak Gupta, a veteran of Ralph Nader's organization Public Citizen who founded the Washington-based firm Gupta Beck.
Chevron declined to state who would represent it should the case go the 2nd Circuit.
"Steven Donziger has once again changed his legal team, but there is one thing he cannot change: the evidence against him," spokesman Morgan Crinklaw said in a statement. "Now he is resorting to his old playbook: play the victim, try the case in the media and pressure government officials to intervene in the judicial process. It's unfortunate that well-intentioned NGOs are allowing themselves to be used in this manner."
Humberto Piaguaje, one of the two remaining Ecuadorean defendants in the New York case, said in a statement through his spokesman that advocacy groups would be wise to oppose Chevron.
"If we fold our arms, there will soon come a day when advocacy of any kind will be labeled simply extortion," Piaguaje said. "There could come a day where everybody who organizes to oppose corporate abuses could be described as organized crime."
Chevron's lawsuit against Piaguaje and his colleagues alleges violations of federal anti-racketeering law, generally associated with mob cases. Several of the speakers drolly noted that the conference room was filled with alleged "co-conspirators," including publicists, lawyers and members of nongovernmental organizations.
The Sierra Club is one of 41 signers of a letter to U.S. Sens. Barbara Boxer, Elizabeth Warren, Richard Blumenthal, Al Franken, Patrick Leahy, Sheldon Whitehouse, Jon Tester, Bernie Sanders, Sherrod Brown and Robert Menendez. It asserts that Chevron's "scorched earth" litigation "attacks free speech," "vilifies critics," and "undermines the system of justice and judicial sovereignty."
Marco Simons, the legal director of EarthRights International, another signing organization, condemned Chevron's litigation tactics over the past two decades without taking a position on the facts of the case.
Like several of the other speakers, Simons noted that Chevron had wanted to fight the case in Ecuador before it tried to negate its ruling back in New York.
In 1993, dozens of indigenous and farmer Ecuadorean plaintiffs sued Texaco in Manhattan on behalf of more than 30,000 others in their region. Eight years later after it acquired Texaco, Chevron sought and received permission to have the case brought in Lago Agrio, the site of the drilling, under the doctrine of forum non conveniens, Latin for "inconvenient venue."
EarthRights encountered this strategy when Chiquita succeeded in having a court in Colombia hear the lawsuit farmers filed against it, and Bhopal won the right to shuffle litigation over a 1984 toxic leak to India, Simons said.
"Companies often use this argument figuring that injured communities will not be able to find competent lawyers in another country and that foreign courts will typically protect large multinational corporations," he said.
Simons warned that Chevron's return to New York to negate the Ecuador's verdict could lead to a "never-ending saga for victims of environmental damage" seeking redress.
A 2nd Circuit battle, if it comes, will likely center less on the merits of Chevron's claims than on whether a New York court can order foreign courts not to respect another country's verdict.
In 2012, the appellate court found that Judge Kaplan had no jurisdiction to issue such a "radical" order, and it lifted an injunction that he ordered. The Ecuadoreans quickly went about trying to collect Chevron's assets in Argentina, Canada and Brazil.
Kaplan later pushed forward a new trial on the enforceability of the judgment through the counts that the appellate panel had left untouched.
In December, Chevron proposed the text of what such an injunction might look like in a post-trial brief, and the Ecuadoreans claim that its language gives them a new opportunity to try to boot the case.
According to the motion, Chevron's latest injunction does not prohibit courts in other countries from accepting collections actions, but instead calls for the disgorgement of future gains from the Ecuadorean judgment.
"But how would that relief remedy a present injury of Chevron's - or prevent a certainly impending future injury - when no court has yet enforced the judgment, and Chevron itself confidently asserts ... that '[n]o tribunal with respect for the rule of law will ever enforce the Lago Agrio judgment'?" the motion states.
Declining to answer that question, Chevron's spokesman deferred to the reply briefings the company submitted, totaling hundreds of pages.
Gupta insisted that the Chevron's proposed injection painted them into a corner by failing to specify a tangible form of relief the Kaplan could grant.
"Courts are not debating societies," he said.