Familiar Faces in High-|Stakes Chevron Appeal

     MANHATTAN (CN) – With minutes to go until today’s New York appeal, two of the judges helping decide the fate of a $9.5 billion dollar environmental judgment against Chevron in Ecuador may experience déjà vu.
     The 2nd Circuit panel convening today will look at an Ecuadorean court judgment against Chevron for oil destruction to the Amazon rainforest that U.S. District Judge Lewis Kaplan found had been “procured by corrupt means.”
     New York-based attorney Steven Donziger, the primary target of Chevron’s racketeering allegations, filed his appeal separately from his former Ecuadorean clients. They have denounced Kaplan’s rulings as “judicial imperialism,” and two of their previous appeals have reached members of today’s panel.
     Both appointed by former President George W. Bush, one judge found in Donziger’s favor in the past, the other in Chevron’s.
     Judge Richard Wesley sat on the same court that voided an earlier version of Chevron’s case, seeking an injunction to prevent the collection of the Ecuadorean judgment anywhere on the globe.
     In 2012, the appellate panel that included Wesley found that Kaplan had no authority to issue such a “radical” decree. In the wake of that decision, Chevron pared down its allegations to request a ruling limited to the parties it sued.
     For Donziger and his colleagues, this revision did not cure what they saw as the bias of Judge Kaplan, who granted Chevron’s motion to hear the case without a jury.
     Before trial, Donziger tried again to unseat Kaplan in an emergency motion to the 2nd Circuit.
     Judge Barrington Parker, who is also hearing today’s appeal, was one of the judges who rejected that motion in 2013. Parker also sided with Chevron in its effort to look at documentary footage that a filmmaker characterized as protected by journalist’s privilege.
     The third member of the panel, Amalya Kearse, is an appointee of Jimmy Carter who has never presided over Chevron’s racketeering case.
     Another tie to the Bush administration meanwhile is found in Chevron’s counsel, with attorney Ted Olson having served as solicitor general from 2001 to 2004.
     As in the appeal from 2012, the three-judge panel that meets today will consider whether Kaplan overstepped his bounds in assuming jurisdiction over the case.
     Although the litigation began in New York in 1993, Chevron had the case brought roughly eight years later to the Ecuadorean city of Lago Agrio where a provincial court in ultimately ruled against the company.
     Before the verdict came down, Chevron launched a counteroffensive on three continents asserting that the company was being extorted in Ecuador. The oil giant accused Donziger and his associates of bribing judges and ghostwriting the judgment against it.
     Donziger’s attorney Deepak Gupta noted Chevron’s allegations rest largely on the testimony of Chevron’s star witness Alberto Guerra, whom the company compensated with at least $326,000, an immigration attorney and a car.
     Kaplan wrote in his ruling that independent evidence outweighed Guerra’s credibility problems.
     Meanwhile, Gupta asked the appeals court to give judicial notice to new forensic evidence that Kaplan never saw, examining the hard drives of the Ecuadorean judge whose name appears on the verdict against Chevron.
     Donziger believes that this new evidence will vindicate him from Chevron’s ghostwriting allegations, and the oil giant has opposed mention of it on appeal.
     The 2nd Circuit has not yet ruled on whether it will acknowledge the new evidence.
     Much of the appellate argument is likely to revolve less around the facts of the case than the law.
     A legal controversy still rages over whether the anti-racketeering statute Chevron used can be deployed to end-run a foreign litigation, and the Ecuadorean government filed a legal brief calling Kaplan’s ruling an affront to principles of international comity.
     As the Chevron litigation chills relations between Washington and Quito, the people of New York are bracing for light rain outside their concrete jungle, and Ecuador heads toward the end of its wet season.

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