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Chevron vs. Donziger…. (continued)

This 11 minute video from 2019 talks about how CHEVRON/TEXACO got away with not paying for a 9 billion dollar judgment against it for polluting Ecuador and never cleaning it up. The human rights lawyer who narrates this piece has been under house arrest by a NY federal judge for 1.5 years — despite protests from Amnesty International, 55 Nobel laureates, and Marty Garbus (the lawyer who argued for Nelson Mandela’s freedom, defended Ellsberg, Andrei Sakharov, Cesar Chafez) etc.

From a recent interview with the head of Amazon watch:

“The real thing that’s going on here is Chevron is attempting to literally criminalize a human rights lawyer who beat them. He’s never been accused, let alone convicted, of a crime anywhere. And now Chevron’s machinations by Lewis Kaplan, this federal judge, and Preska, the judge that he has appointed, are on the cusp of turning him into a criminal because he didn’t comply with Kaplan’s outrageous contempt of court orders.”

And so, Steven Donziger, for Chevron, is a tactic. It’s a tactic for them to avoid talking about what they actually did, and have the world not look at what they actually did in the Ecuadorian Amazon. And what we want, as the human rights and environmental justice community, is for this new administration to check the corporate power that has manipulated the judicial system to turn Steven Donziger into an example of what will happen if you stand up to corporate power in the United States. And it’s a seriously chilling one.

Democracy Now interview, March 15 2021

An Intercept piece gives the full sordid history in the case.

“On the basis of (Judge) Kaplan saying, ‘I believe this witness; I find Donziger guilty of the crime of bribery of the judge’ — on the basis of that, he’s been destroyed. That is the pinnacle element of all of the other claims against him. And if you take that one out, the rest of them — they’re just not there,” said Charles Nesson, an attorney and Harvard Law School professor. “He has effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge,” Nesson said of Donziger. “I teach evidence, that you have to prove what you assert. But the proof in this case is the thinnest.”

Charles Nesson, Harvard law professor,

I’ve looked at some of the briefs on both sides and the various judgments. The bribery/RICO charges seem wild and incredible; also, it seems ludicrous to apply RICO to a case where a lawyer is trying to fund a lawsuit by promising to the law firm a percent of the amount recovered.

Leaving aside the case of Donziger’s arrest, several things about the case have been shocking:

  • Chevron’s attempt to change the venue from US and Ecuador and then after they lose after multiple appeals in Ecuador, they try to vacate the judgment through US courts:
  • The amount of money Chevron has paid in legal fees — and the legal tricks they have employed to drain the funds of the litigants and their attorneys. I saw one estimate that the amount of legal fees spent by Chevron to be over a billion dollars.
  • Kaplan’s judgement was shocking; but also shocking was that the judgment was upheld on appeal, and when it was appealed en banc to the 2nd circuit court of appeals, it was unanimously denied. Later, the appeal to the Supreme Court to grant certiori was denied.
  • After reading the evidence on both sides, I remain very skeptical that Donziger’s team was involved in any way in bribing the original judge in Ecuador. If anything, there was information sharing (sharing documents and undoubtedly copying and pasting parts of legal briefs). That is insufficient to establish a case of bribery, RICO and fraud. Donziger once said that sharing MS Word files was commonly done in Ecuador when drafting judgments. The Ecuadorian judge (who was actually well-respected in his home country and flown in to testify in the NY courtroom about how he made the decision) said that the case was gigantic and overwhelming, but he and his secretary did manage to draft the judgment without outside influence — though there was cutting and pasting where applicable.

I have a small personal connection to the case. My dad worked for Texaco in the 1960s and 1970s, and once my dad bought me 2 shares of Texaco stock as a way to help me learn about the stock market. Interestingly I remember periodically receiving a glossy stockholder portfolio containing corporate information and financial disclosures. I didn’t really understand it, but I clearly remember that the brochure includes photos of oil drilling in Ecuador several times. In the 1980s my dad (who had become a lawyer) and I were both filing the Penzoil vs. Texaco case which Texaco ended up losing a 10 billion judgment for not honoring a contract between Penzoil and Getty. Texas was egregiously in the wrong, and in fact their legal defense team was incompetent as well (for not disputing the damage claim).

In the 1970s Texaco was making a ton of money — and so were its competitors, but Texaco seemed to be the least law-abiding of the majors.

Last Christmas I listened to an amazing podcast series Drilled, where a podcaster tried to follow the long history of the case and interview the major actors. I know a lot of this already (following this case was almost an obsession with me over the last 20 years), but the thing that surprised me the most was an interview with an expert on multilateral arbitration about how awful it is and how easily corporations can avoid the civil and criminal courts on the country level. (See this great interview on S5 E 4 “THE SECRET TRIBUNAL” Oct 16 2020 corporate wrongdoers evade enforcement and how it makes enforcement of environmental lawsuits practically impossible. It even grants to corporations remediation by the government for changing their laws about multinational corporations. Wow, how convenient.

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