These days, when powerful corporations get caught breaking the law, polluting the Earth, violating human rights, or all of those crimes simultaneously, they don’t pay the fine and make amends, like normal citizens. They attack.
Corporate lawyers spend millions to assault victims with SLAPPs (Strategic Lawsuit Against Public Participation). The most recent SLAPP strategy in the US, popularized by attack-dog New York law firm Gibson Dunn, employs US “racketeering” (RICO) laws against environmental groups, victims of pollution, and their lawyers.
The purpose of a SLAPP lawsuit is not necessarily to win in court, but rather to intimidate, harass, demonize, and bankrupt the weaker opponent. “The powerful use their abundance of resources to enact revenge,” explains the American Civil Liberties Union. Many jurisdictions now ban SLAPP suits, but corporations still shop around for lax jurisdictions and sympathetic judges.
In 2013, for example, when Greenpeace Canada exposed Resolute Forest Products’ destructive logging in Québec, Resolute filed a retaliatory $7-million lawsuit against Greenpeace Canada and two staff members in Ontario, which did not yet have anti-SLAPP laws. Later, Resolute used US courts to attack Greenpeace USA and Greenpeace International under the Racketeer Influenced and Corrupt Organizations (RICO) Act, created in 1970 to prosecute organized crime syndicates. “This lawsuit,” said Greenpeace US director Annie Leonard, “is an attempt to silence, vilify, and criminalize activism.” As with most of these intimidation lawsuits, the RICO case in the US was thrown out of court, but Resolute promptly filed an amended suit.
In perhaps the most vindictive SLAPP in history, Chevron — one of the world’s largest corporations, with over $260-billion in assets — found a sympathetic New York judge to accept a RICO lawsuit against the victims of its vast oil pollution in Ecuador’s Amazon basin.
Chevron’s Amazon troubles began in 2000 when it purchased Texaco, inheriting liability for the company’s oil field pollution in Ecuador, known as the Amazon Chernobyl. Texaco/Chevron had dumped some 16 billion gallons of toxic wastewater into rivers and abandoned over 900 carcinogenic waste pits. The Indigenous rainforest inhabitants claim they were left with destroyed land, polluted water, and an epidemic of cancer and birth defects.
In 1993, the victims sued for damages in the US. Chevron fought for nine years to shift the case to Ecuador, where they may have expected to influence the courts. Chevron fully accepted jurisdiction in Ecuador, where the case began in 2003. Six years later, in light of overwhelming scientific evidence, Chevron realized that they would likely lose. In 2009 the oil company hired the notorious “rescue squad” law firm of Gibson Dunn, found a corporate-friendly Judge, Lewis A. Kaplan in New York, and began a series of SLAPP attacks on the victims, on their lawyers, and on the Ecuadorian judicial system. Over the next five years, Kaplan allowed virtually any Chevron motion, denied defendant motions, mocked the victims and their lawyers, and allowed a RICO racketeering case against two Ecuadoreans — Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho — and their American lawyer, Steven Donziger.
Meanwhile, in Ecuador, the Indigenous and peasant villagers won a $9.5 billion compensation judgment, confirmed by appellate courts and by Ecuador’s Supreme Court (Court of Cessation). In response, Chevron sold its assets in Ecuador, fled the country, refused to pay, and threatened the victims with a “lifetime of litigation.”
The company has since retained over 60 law firms, 2,000 lawyers, paralegals, six public relations firms, squads of private investigators, and at least one bribed witness, who later admitted to lying. Lawyers for the victims estimate Chevron has spent over $2 billion to avoid payment of the court judgement, the largest collection of SLAPP suits in history.
Gibson, Dunn & Crutcher (Gibson Dunn) promotes itself as a corporate “rescue squad” specializing in “shielding clients” from “billions in liability”. They boast of getting George W. Bush installed as US president by stopping a Florida vote recount, and shielding Lehman Brothers from liabilities in the largest bankruptcy filing in U.S. history.
Randy Mastro co-chairs the firm’s litigation department; infamous for a string of court censures for fabricating evidence, lying and other criminal misconduct. In 2015, the High Court of England sanctioned Gibson Dunn for fabricating evidence to frame the political rival of the firm’s client, the President of Djibouti, Africa.
In 2005, a federal court in California sanctioned Gibson Dunn for tampering with a witness, “obstruction, gamesmanship and flagrant disregard” of Court orders. In 2007, the Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn for “blatantly and maliciously trying to intimidate” its adversary, using the judicial system for “legal thuggery”. The following year, a New York federal judge sanctioned the firm for “unacceptable shenanigans”, including hiding documents and outright lies. A California federal judge concluded that the firm’s misconduct is “a product of a culture which permeates” Gibson Dunn.
As Chevron faced losing the pollution case in Ecuador, CEO John Watson and General Counsel R. Hewitt Pate turned to Gibson Dunn’s “rescue squad” for help. The lawyers, led by Mastro, soon revealed their abusive tactics. An Oregon federal judge sanctioned the Gibson Dunn lawyers for using the discovery process — intended to provide information to opposing counsel — to harass a small legal non-profit assisting the Ecuadorian victims. In Ecuador, appellate judges rebuked Chevron’s new lawyers for threatening trial Judge Nicolas Zambrano with criminal charges and prison unless he dismissed the case.
However, the Ecuadorian decision stood, Chevron owed its victims $9.5 billion, and Randy Mastro went to work harassing the victims, their lawyers, and the Ecuadorian justice system before a gleefully encouraging Judge Kaplan in New York.
Judge as prosecutor
Chevron and Gibson Dunn knew precisely who Judge Kaplan was, when they launched their series of SLAPP suits through his court.
In 2004, Kaplan allowed the NY Police Department to arrest any “recognizable group” of 50 or more cyclists riding together, as a way of stopping bicycle protests, specifically by the environmental group Critical Mass. Although the First Amendment of the US Constitution protects “freedom of assembly”, Kaplan argued that “traffic flow” held precedent over the right of citizens to assemble in peaceful protest. When Lehman Brothers employees sued Lehmans for failing to protect their pension plan, violating the Employee Retirement Security Act, Kaplan simply dismissed the case.
At The Robing Room, a judicial review forum, one commenter warned, “if you are representing big business interests, Judge Kaplan will find a way to rule in your favor. If you going up against big business interests, you are out of luck.” Others describe Kaplan as “working for business interests” and “part of the old-boy network.”
“We knew that Gibson Dunn and Chevron had selected Judge Kaplan as an ally,” said Steven Donziger, lawyer for the original Ecuadorian plaintiffs, Frente de Defensa de la Amazonía (FDA). “A normal judge’s responsibility is to insure impartiality, decorum, and legal integrity. In the RICO SLAPP suit, Kaplan served more as a member of the prosecution team. He mocked defendants, laughed at defense motions, praised Chevron, granted their every wish, and insulted the entire Ecuadorian justice system.”
Marathon of preliminaries
The highly unusual three year discovery and deposition process, prior to the actual trial, revealed a succession of nightmarish legal irregularities:
No media confidentiality: The SLAPP began in April 2010, when Kaplan forced filmmaker, Joseph Berlinger to turn over 600 hours of outtakes from his acclaimed 2009 documentary, Crude: The Real Price of Oil. Kaplan ridiculed the journalist’s request to protect confidential sources. “If this is your best argument,” jeered Kaplan, “you’re in a lot of trouble.” A media coalition — including The New York Times, NBC, and HBO — filed a First Amendment objection with the court, and Robert Redford, writing in the Huffington Post, called the decision a “shocking” betrayal of US First Amendment rights.
Insulting a foreign Court: Kaplan and Chevron lawyer Mastro used the Berlinger hearings to insult the courts in Ecuador, where Chevron had insisted the trial be held. Mastro called the Ecuador courts “a sham” that would cause “any American to shudder at … what passes for a judicial system.” Kaplan openly laughed when asked to delay until an Ecuadorian court could provide input. “If this were the High Court in London,” Kaplan taunted, “you can be sure I’d wait.” Despite Mastro and Kaplan’s disdain here, the Ecuadorian justice system appears as impartial and honourable as any such system in any modern nation.
Insulting the defendants: Throughout the proceedings and in written memoranda, Kaplan referred to the 30,000 class-action victims in Ecuador as “so-called plaintiffs”, suggesting that their “standing in this matter is debatable to say the least.” He referred to their case in Ecuador as “the game” and “not a bona fide litigation.” When Donziger’s attorney made a routine request for time to review thousands of documents, Kaplan scoffed, “Don’t tell me about how long Mr. Donziger needs. I know the game here.”
No attorney-client confidentiality: Kaplan invoked a minor technicality to claim that Donziger, the victims’ US lawyer, had “waived” all attorney-client privilege, and insisted he turn over to Chevron lawyers 17-years of confidential communications with his clients, including, emails, notes, and his entire hard drive. Defense attorneys called this “the most sweeping forced production of privileged documents in history.”
Monster deposition: Federal rules typically limit individual depositions to one day, possibly two days in extraordinary cases. Once Chevron had all of Donziger’s confidential client files, they forced him, with Kaplan’s approval, to endure an unorthodox 18 days of discovery deposition, during which 20 or more Chevron/Gibson Dunn lawyers pelted him with petty and personal questions. According to Donziger’s RICO case rebuttal, Chevron’s lead PR consultant, revealed in 2009: “Our L-T [long-term] strategy is to demonize Donziger.”
Special Master: Judge Kaplan appointed his former law partner, Max Gitter, as “Special Master” or private judge to rule over the protracted deposition, paid entirely by Chevron. According to the Amazon Defense Coalition, Kaplan approved secret payments to Gitter, totaling “likely well over $1 million.” Like Kaplan, Gitter approved Chevron requests and dismissed defense requests. He revealed his conspiratorial relationship with Mastro and Chevron when he made a ruling based on the contents of a future Chevron document that had not yet been filed with the court. Upon realizing his error, he muttered, “Mr. Mastro, am I correct about that?” Mastro responded, “absolutely correct.”
Judge proposes Chevron strategy: During the discovery hearings, Judge Kaplan exclaimed: “Do the phrases Hobbs Act, extortion, RICO, have any bearing here?” signaling to Chevron lawyers that they should file a racketeering complaint. Shortly thereafter, on February 1, 2011, Chevron filed their RICO complaint against Donziger, Piaguaje, and Camacho, claiming that the 10-year case before three levels of Ecuadorian courts amounted to criminal extortion. Chevron asked for billions of dollars in damages, from Donziger, a sole practitioner, and two impoverished villagers, which required a jury trial. Kaplan accepted the claim and assigned the case to himself.
International powers: After the RICO filing, Judge Kaplan presumed to issue a universal injunction, allegedly prohibiting any court in any nation from enforcing the environmental judgment against Chevron, two days before the Ecuadorian court announced that judgment. In September, 2011, the US Court of Appeals vacated the injunction, chastizing Kaplan for inflicting damage on international comity, the principle among modern nations to show respect for each other’s legal systems.
Implacable hostility: By this time, Donziger and the Ecuadorian victims were almost broke, which Donziger claims, “was the whole point of Mastro’s and Chevron’s strategy.” Nevertheless, renowned defense attorney, John Keker, a former US marine, highly respected for legal integrity, offered to help the beleaguered defendants. “This case has degenerated into a Dickensian farce,” Keker said. “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”
Fishing expeditions: Chevron served Donziger, Piaguaje, and Camacho, with hundreds of new document requests and over a thousand “requests for admission,” disputed claims that Chevron could argue were “admitted” if the defendants could not respond. The impoverished Ecuadorian peasants kept almost no documents and rarely engaged in written communication. The requests imposed a massive new expense for the defendants. Kaplan also allowed Chevron to serve subpoenas on Amazon Watch, Google, Microsoft, and others, seeking email accounts to track the activities of some 100 lawyers, students, journalists, and academics that supported the Ecuadorian’s cause. “These were fishing expeditions,” Donziger explained, “that violated everyone’s right to privacy.”
Scorched Earth: By May 2013, before the actual trial had even begun, the defendants were thoroughly destitute, and their defense attorneys — Keker and Craig Smyser, who had been deferring payment — could no longer continue. Both attorneys expressed outrage at Kaplan’s refusal to grant common sense measures to streamline the burdensome process. “Through scorched-earth litigation, executed by its army of hundreds of lawyers,” said Keker, “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.” Smyser, called the lawsuit a “legal blitzkrieg” that Kaplan not only tolerated but “encouraged”.
After four years of gruelling discovery depositions and document demands by Chevron — the exhausted defendants’ best hope for justice rested on the trial jury. A jury would remove some decision-making power from Kaplan, and would hear overwhelming evidence of Chevron pollution and legal misdeeds. However, Kaplan had new surprises in store.
The RICO Trial
No jury: On the eve of the trial, Chevron decided, with Kaplan’s approval, to drop their financial damages claim, which meant that Kaplan could drop the jury and decide the outcome himself. “Chevron,” said Donziger, “apparently panicked at the notion of trying to sell their fraud and extortion claims to anyone other than Kaplan.” The defense demanded a jury trial, based on their right to a jury in a RICO case, a long-standing legal principle in cases that carry criminal implications. Kaplan refused. He would decide himself about the defendants’ guilt or innocence.
No pollution talk: Even though Kaplan had presumed the authority to “set aside” an Ecuadorian environmental judgment with a 10-year, 220,000-page evidentiary record of Chevron’s environmental crimes, and to characterize that entire proceeding as an act of “extortion,” the corporate-friendly judge barred the defense from even mentioning anything “related to the existence of pollution in Ecuador.” The pollution, he said, was “not relevant.”
No dirty-tricks talk: Furthermore, Kaplan ruled that the defense could not mention evidence of Chevron’s campaign or Gibson Dunn’s campaign of “dirty tricks” operations, past courtroom crimes, lies, and fabricated evidence. Chevron, of course, was allowed to discuss any alleged history of the defendants, dredged up from four years of ruthless depositions, spies, and private investigators.
Tsunami of paper: On the first day of trial, Chevron placed over 2,500 exhibits into evidence en masse, nearly 10,000 separate assertions, to which the impoverished defense was given less than a week to respond. If they failed, Kaplan could deem the defendants’ objection “waived.”
Anonymous witnesses: Kaplan accepted testimony from Chevron witnesses whose identity they kept hidden from the defense, preventing the normal investigation necessary for effective cross-examination. The defense expressed outrage at this violation of “basic legal principles,” which they said would “be right at home in the Spanish Inquisition.”
Editing the evidence: At this point, the defense caught Randy Mastro presenting edited video, in which he had cut out critical contextual words from Mr. Donziger’s comments. According to trial transcripts, when the defense brought this to the judge’s attention, Kaplan adjourned, did some research, and responded: “About 15 words were edited out … I assume there was no attempt to mislead.”
Chevron’s claim that the entire Ecuadorian judicial process — ten years of court trials and appellate reviews in three levels of courts — had been “fraudulent” rested, however, almost entirely upon one, single witness.
In American Lawyer magazine, in 2009, David Hechler, describes Gibson Dunn’s “game plan,” to shield clients from liability in foreign pollution cases: “find witnesses” who will accuse the foreign court of “fraud.” In a separate American Lawyer story, Gibson, Dunn lawyer Robert Cooper, explains, “We prepared the witnesses to tell our story.”
In Ecuador, on behalf of Chevron, Gibson Dunn found one such witness, Alberto Guerra, a former Ecuadorian judge who had been removed for misconduct, including accepting bribes. According to Amazon Watch, Chevron lawyer Andres Rivero and Chevron private investigator Yohi Ackerman paid Guerra $48,000 in cash, and agreed to pay him $12,000 a month for at least three years. Chevron lawyers allegedly negotiated and smoothed Guerra’s immigration into the US, paid for his family to move, hired lawyers to get them green cards, and bought them a car, auto insurance, and health insurance.
According to a letter from the defense to the US Department of Justice, Chevron has paid Guerra at least $2 million in cash and benefits, in exchange for false testimony. According to an affidavit by legal ethicist Erwin Chemerinsky — Founding Dean of the University of California at Irvine School of Law and a prominent US legal scholar — these payments to Guerra violated fundamental ethical rules of law.
In New York, over 53 days by Guerra’s admission, Gibson Dunn’s Randy Mastro helped him prepare his testimony about “fraud” in Ecuador. On the stand before judge Kaplan, Guerra claimed that Ecuadorian lawyers promised presiding judge Nicolas Zambrano $500,000 to allow them to write the final judgment, which Guerra claimed they gave to Zambrano on a flash drive. Guerra also claimed that he possessed a draft copy of the fraudulent judgment and that he met with the plaintiffs’ American lawyer Steven Donziger to discuss the alleged “bribe”.
Quickly, however, Guerra’s story fell apart. Immigration records showed that Donziger was not even in Ecuador when Guerra claims the meeting took place. No evidence of a flash drive was ever produced, and Guerra’s computers did not turn up the draft judgment, or even a single email from the plaintiffs’ attorneys. When this came to light, Guerra changed his story, claiming that after “strengthening my memory” he now recalled working on this draft, not at home, but rather had taken an eight-hour bus ride into the jungle, where he claimed he edited the judgment on a laptop handed to him by one of the Ecuadorians’ lawyers.
However, this story crumbled as well when forensic analysis showed that the trial judge had never downloaded the judgement from a flash drive and, rather, had opened and saved his own written judgement document more than 400 times over three months on his own office computer.
Furthermore, after the RICO trial, in a separate arbitration under the US-Ecuador Bilateral Investment Treaty, Guerra admitted under oath that he had lied to Chevron’s lawyers about his involvement in the alleged attempt to influence the Ecuadorian judgement. “I did exaggerate about [some things], yes,” said Guerra under questioning. When a lawyer asked him, “And among the ways you tried to leverage your position was to falsely tell the Chevron representatives that the Plaintiffs had offered you $300,000?” Guerra answered, “Yes, sir. I lied there.”
Nevertheless, Kaplan accepted Guerra’s testimony and rejected defense efforts — Motion to strike testimony and Motion for terminating sanctions — to strike Guerra’s testimony, which the defense claims was fabricated during the 53-day session with Chevron lawyers.
The final twist appeared as Judge Kaplan crafted a judgment. By dropping the money claim, Chevron had avoided a jury but also undermined its own case. A plaintiff must seek either money for damages or an injunction, a court-ordered condition placed on the defendant. The Court of Appeals had already reversed Kaplan’s earlier injunction and could do so again. Without a money claim or injunction, Chevron lacked standing.
Perhaps to avoid this problem, Kaplan based his guilty verdict on a “non-statutory claim for equitable relief” from an allegedly fraudulent judgment. According to Donziger’s rebuttal, the decision lacked “due process,” since the claim had never been presented by Chevron or argued in court, and “relied on vague 18th and 19th century treatises” that “had been effectively repealed and replaced by the statutory framework for enforcement of foreign judgments … during the twentieth century.” Typically, a judge can’t invent a new claim for the plaintiff after a trial has ended.
The Republic of Ecuador filed an Amicus Brief, stating that “Judge Lewis Kaplan reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador.” They stated that Kaplan’s “unfounded commentary”, against a “sovereign democracy”, was based on “unreliable evidence”. The Ecuadorian court charged that Kaplan relied almost exclusively on one Vladimiro Álvarez Grau, an avowed political opponent of the Ecuadorian government. “Chevron sought out a favorable forum,” the Ecuadorian court wrote. “The District Court [Kaplan], fulfilling Chevron’s wishes, chose to make far-reaching judgments based primarily on the opinions of a single partisan.”
Finally, the Ecuadorian court confirmed that Chevron Corporation remained responsible for the impact of its pollution. “In 2005,” the court wrote, “ChevronTexaco dropped the name ‘Texaco’ and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on ChevronTexaco’s legal obligations. Chevron Corporation therefore remains accountable.”
Furthermore, in a separate discovery hearing, the US Third Circuit court cautioned: “The circumstances supporting [Chevron’s] claim of fraud largely are allegations and allegations are not factual findings.”
This historic SLAPP lawsuit, possibly the most expensive in history, appears to have failed, even after Kaplan’s decision. Foreign courts have ignored Kaplan’s injunction, and Donziger and his clients are making progress in Canadian courts, where the victims are attempting to collect the Ecuadorian judgment by seizing Chevron Canada’s assets, and where they have won three consecutive unanimous appellate court decisions. Donziger and the Ecuadorian villagers have said they would welcome Chevron to claim in Canada that the Ecuadorian judgment was fraudulent. “If they had to bring Guerra to Canada before a neutral judge,” says Donziger, “we believe the company’s entire RICO narrative will collapse.”
SLAPP suits represent a threat to public protest and free speech. They have no place in a democracy.
References and Links
Ecuador Supreme Court (Court of Cessation): court ruling in Ecuadorean class action vs. Chevron Corporation.
ACLU, Slapped: A Tool for Activists: ACLU
Chevron assets: Fortune magazine.
Chevron: 60 law firms and 2000 lawyers: Amazon Watch, CSR.
Chevron threatens plaintiffs with a “Lifetime of litigation.”: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; and (2) Writ of Mandamus, Feb. 6, 2011: pdf
Gibson Dunn, “rescue squad,” “shielding clients”: Gibson Dunn promotions
Gibson Dunn censure by High Court of England: “Chevron Law Firm Gibson Dunn Blasted by High Court of England For Falsifying Evidence: Chevron Pit, March 25, 2015.” Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn: Montana Supreme Court document, 05-378, 2007, MT 62.
Ecuador, appellate judges rebuke Chevron’s lawyers for threatening trial Judge Nicolas Zambrano.
Gibson Dunn in Ecuador: under scrutiny for trying to mislead Congress
California, 2005, censure of Gibson Dunn
Gibson Dunn sanctioned by a federal judge for harassing a witness in a discovery action in Oregon.
Comments about Judge Lewis A. Kaplan on legal review site: The Robing Room
Robert Redford objects to Kaplan denial of media confidentiality: Huffington Post
New York Times, NBC, and HBO file a First Amendment objection with the court. NPR
Kaplan and Mastro insult the courts in Ecuador: “Writ of Mandamus, US Court of Appeals, Second Circuit, Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, petitioners, filed by Attorneys: James E. Tyrrell Jr. NY, Julio C. Gomez, NY, and Carlos A. Zelaya, II, Feb. 6, 2011: pdf
Allegations of bias by Kaplan: Writ of Mandamus, Feb. 6, 2011: pdf; and “Chevron’s RICO Fraud” pdf
“Our L-T [long-term] strategy is to demonize Donziger.” — Chevron’s lead PR consultant, 2009: (1) “Chevron’s RICO Fraud” pdf and (2) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018
Chevron’s RICO Fraud: An Abuse of Indigenous Peoples, the Environment, and U.S. Courts in the Chevron v. Donziger Case; S. Donziger and the Ecuadorian Legal Team: pdf.
Defendant’s right to a jury in a RICO case: CSR, 6 February, 2014.
Defense calls anonymous witnesses a violation of “basic legal principles … right at home in the Spanish Inquisition.”: US District Court, Southern District of New York, Case 1:11-cv-00691-LAK-JCF Document 1154 Filed 05/14/13, “Opposition to Chevron’s Motion for an order to Further protecting the Confidential declaration of Doe3.”
Gibson Dunn “game plan”: (1) “District Court Denies Enforcement of $97 Million Nicaraguan Judgment,” Gibson Dunn; and (2) “The Kill Step,” David Hechler, Sept. 20, 2009, The American Lawyer
Randy Mastro and Gibson Dunn lawyers preparing Guerra over 53 days: Huffington Post, Paul Paz y Miño, May 30, 2017.
Guerra bribed by Chevron: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; (2) “Chevron’s RICO Fraud,” legal rebuttal: pdf. Guerra bribed by Chevron: Huffington Post, Dec. 6, 2017; (3) “Chevron Executives Misused Millions of Shareholder Dollars To Bribe a Witness,” Amazon Watch, May 30, 2017.
Alberto Guerra admits lying in RICO testimony: (1) US Court of Appeals for the Second Circuit, Chevron Corporation vs. Steven Donziger, Hugo Gerardo Camacho Naranjo, et. al.; No. 14-826-cv(L), November 5, 2015. (2) “Chevron’s Star Witness Admits to Lying in the Amazon Pollution Case, Vice News, Eva Hershaw, October 26, 2015 (with Testimony from arbitration under the US-Ecuador Bilateral Investment Treaty); (3) U.S. Courts Endorsed Chevron’s Fabricated Evidence: Ecuadorian Villagers and Counsel Slam Chevron’s Star Witness for Lying and Offer Rebuttals to 12 False Findings by Second Circuit Court of Appeals”: CSR wire, May 16, 2017; and (4) Chevron’s RICO Fraud: pdf.
“Judge Kaplan Drastically Overreached With “Unlawful” Injunction To Protect Chevron, International Law Experts Say,” Rainforest Action Network.
Defense documents requesting to strike Guerra’s false testimony, citing evidence that Guerra lied, and admitted to lying: (1) Motion to strike testimony of Alberto Guerra Bastides, pdf and (2) Motion for terminating sanctions, pdf.
“Rainforest Groups Blast U.S. Judge Kaplan for Ruling Designed to Help Chevron Evade $9.5b Pollution Liability,” CSR wire, March 9, 2018.
Republic of Ecuador’s Amicus Brief denouncing the Kaplan judgement based on false testimony from a bribed witness, and denouncing Kaplan’s insults toward Ecuadorian courts.
US Third Circuit court, Chevron’s claim of fraud are allegations, not facts: Writ of Mandamus, US Court of Appeals, Case: 11-2259, 06/02/2011.
Kaplan’s judgement based on 18th and 19th century treatises: Judgement transcript: District Court, Southern District of New York: Case 1:11-cv-00691-LAK-JCF, Document 1874, Filed 03/04/14, Page 330 of 497.
Chevron lacked standing: (Article III , U.S. Constitution; the US Supreme Court has held that federal courts may hear “cases and controversies” but many not simply issue advisory opinions if there is no claim for “relief.”
“In Canada, Chevron Faces New Risks From $12b Ecuador Pollution Judgment As Shareholders Step up Pressure,” Amazon Defense Coalition, FDA, March 23, 2018
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Thank you for this deep dive into SLAPP, Chevron and Gibson Dunn. I've been following this case for years and never cease to be shocked. I would like to see a discussion of remedies here. How can this type of intimidation be prevented in the future? Perhaps SLAPP/RICO wasn't the main issue in Ecuador's appeal to the Supreme Court, but I'm surprised that this intimidation wouldn't provide a basis for consideration upon appeal. I'm struck at how much deference Kaplan was given by the Appeals Court. This is an important case that needs to be studied carefully. Finally, from an activist point of view, I don't see how Donziger et al could have really done anything differently. Looking back, what tactic would have worked that wasn't already tried? The Ecuador side did a lot of public advocacy, and shareholders did try to protest, but ultimately it was insufficient. Chevon paid almost no legal/political or business price for their wrongdoing. Is US Society so oblivious to this corporate malfeasance that some corporations have simply become "too big to be punished"?
This article appears to biased, unfair, and mostly factless based. As an environmentalists myself, I am appalled that Greenpeace is focused on demonizing a corporation, even after the courts in many jurisdictions have ruled otherwise, instead of, truly, going after the culprits of the mess in Ecuador - the government of Ecuador and its cash-machine: PetroEcuador. Come on Greenpeace, get with your purpose and go after the culprits and make them pay for the injustice of the oily-mess in Ecuador. I recommend you stop going down the path of pursuing Chevron and get focused.
An interesting article, however, it demonizes Chevron and portrays that the only avenue to help the affected communities is to continue to attack Chevron and wish that they would somehow change their stance. Not going to happen from what I can see. Why not use Petroecuador in Ecuador to attach the Ecuadorian judgement? They had more skin in this matter than Chevron Canada. At lease get Petroecuador back to cleaning up the areas they agreed to clean up before Donzinger told them to stop the cleanup because it was hurting his case. And stop attacking American courts. There were over 20 witnesses and another 20+ depositions that Judge Kaplan relied on not just one witness as this article states. Donzinger behaved inappropriately and got caught.
I attended the majority of the RICO trial and as unsavoury as Mr. Weyler’s story sounds, it was even more egregious when seen live. One telling example of the biased way the proceedings were run is briefly referenced by Mr. Weyler: the fact that Mr. Donziger was not even in Ecuador when Guerra claims their meeting took place. Prior to Guerra taking the stand, one of the defense’s lawyers (Zoe Littlepage), had realized based on immigration records that Mr. Donziger could not have been in Ecuador anywhere near the time that Guerra had indicated the meeting occurred. Ms. Littlepage had crafted a line of questioning that likely would have lead Guerra into admitting this on the stand and had begun her cross-examination of Guerra. As soon as Judge Kaplan sensed the direction Ms. Littlepage was going with her questions to Guerra during the disgraced ex-judge’s testimony, and the potential consequences of such testimony being entered into the record, Judge Kaplan cut Ms. Littlepage off and disallowed any further questions on the matter. Judge Kaplan’s actions were so unbelievable that Ms. Littlepage began laughing in disbelief. The preceding is but one of multiple moments throughout the RICO trial, many discussed in the above article, demonstrating the unfairness of the proceedings. It will be interesting to see how Chevron’s “bribery” and “ghostwriting” allegations, already disproven in international arbitral proceedings (and partially recanted by Guerra himself), are handled by Canadian courts once a full trial on the merits begins. Chevron cannot be relishing the thought of Guerra being put on the stand before truly impartial arbiters.
What a load of BS. Greenpeace diminishes itself by posting biased rants like this. Donziger is a convicted con man, no more, no less.
A very smart piece that lays out the lies Chevron has told in order to avoid doing anything to help indigenous Ecuadorians and poor villagers living in the rainforest with the contamination Chevron produced. Remember BP? BP, a UK oil company, paid the US Govn't $20 billion only days after accidentally killing Americans working for them and spoiling the Gulf Coast environment. BP then spent another $40 billion or so cleaning up contamination not nearly as huge and as dangerous as what happened in Ecuador. Meanwhile, our government, Congress, and a US judge have protected Chevron, an American oil company, from a much smaller damage award of $9.5 billion U.S. refused to pay the damage award. Then, the American company Chevron filed a counter attack in the U.S., charging the Ecuadorians and everyone involved in the case with fraud and bribery. I am guilty of fraud and bribery. Ecuadorians suffering from cancer are guilty of fraud. Their lawyers are guilty of fraud. This is what a SLAPP is. A slap in the face.
Wow, this is a brilliantly-written in depth indictment of not only Chevron, Gibson Dunn and so-called Judge Lewis A. Kaplan, but of the way powerful corporations corrupt our legal system and (by thw way) move our species closer to extinction in the name of shareholder dividends and year-end bonuses. I hope this article does for Gibson Dunn and Kaplan what the Washington Post is doing for Michael Cohen, who's an amateur by comparison. PS How long till Chevron's trolls find this article? I'll be amused to see them prove the author's point.
Chevron company are evil pieces of ####