NEW YORK, Dec. 24 /CSRwire/ - Chevron’s RICO case is facing a dead end in the coming months because a U.S. court is barred by law from sitting in judgment of another country's judiciary, lawyers for Ecuadorian villagers and their counsel argue in post-trial legal briefs filed this week in response to Chevron's retaliatory racketeering case.
The 70-page brief, filed last night by lawyers for New York attorney Steven Donziger and available here, also argues that U.S. Judge Lewis A. Kaplan wrongly allowed Chevron to bring its case under the RICO statute and that Chevron failed to prove the alleged fraud that villagers say was a ruse manufactured by the oil company to evade paying a $9.5 billion judgment against it.
The judgment was handed down in Ecuador after a court found Chevron guilty of discharging billions of gallons of toxic waste into the Amazon, decimating indigenous groups and causing a spike in cancer rates. For a summary of the evidence relied on by the trial court to find Chevron liable, see here; view this video for background on Chevron's sub-standard practices; and view this segment from 60 Minutes for further documentation of Chevron's contamination.
Just last week, an Ontario appeals court gave the go-ahead to an enforcement action by the villagers against Chevron's assets in Canada, estimated to be worth $15 billion. That court took a veiled swipe at Kaplan in its decision.
Chevron’s 393-page post-trial brief contains almost 200 pages of “findings” that the oil giant is urging Judge Kaplan to adopt – a highly questionable practice that amounts to an attempt at ghostwriting the court’s decision, said Christopher Gowen, an ethics professor the Washington College of Law at American University and a member of Donziger’s legal team.
“Chevron spent about $1 million per day on a show trial and clearly expects a payoff by ghostwriting Judge Kaplan's opinion,” Gowen said. “A legal brief is supposed to assist the Court on the law. But Chevron spends 200 pages on findings of fact and barely even attempts to provide legal support for Kaplan’s wacky attempt to serve as the appellate court for the country of Ecuador. That’s because there is no legal support for what Chevron is asking the court to do."
"This entire process is absurd and it will go down as one of the greatest abuses of the American civil justice system, ever,” Gowen added.
Donziger’s final brief blasts Chevron for asking Kaplan to issue the same worldwide injunction purportedly blocking enforcement of the Ecuador judgment that already wasoverturned by a federal appellate court in 2011. An earlier critique of Chevron’s faltering RICO case can be read here.
Chevron had dropped a damages claim of $60 billion on the eve of trial to avoid a jury, demonstrating it did not believe its own evidence would be found credible by impartial fact finders, said Gowen. That decision has created a host of fatal obstacles for the oil giant, according to the brief.
Highlights of the final brief submitted by Donziger include:
**An introduction (pp. 1-7) that summarizes the legal and factual flaws in Chevron’s case, including Judge Kaplan’s lack of jurisdiction: “Having been held responsible by a court of law for one of the worst environmental disasters in history, Chevron wants an order from a U.S. trial judge preventing enforcement of the judgment of an Ecuadorian court…. But this Court lacks jurisdiction to even consider that request” under clear authority established by the Second Circuit Court of Appeals, which oversees Kaplan.
The brief said the worldwide injunction sought by Chevron would violate established legal authority in the U.S. and also “would do violence to principles of international comity, disrupt our diplomatic relations with friends and allies, and invite scorn around the world. It would be an affront not only to the Republic of Ecuador but to the legal system of every other sovereign nation, each assumed incapable of deciding for itself whether to enforce the judgment.”
(Because Chevron refuses to pay the Ecuador judgment, the Ecuadorian villagers have filed enforcement lawsuits against Chevron in Canada, Argentina, and Brazil—all of whom have their own laws governing such actions.)
**A factual statement outlining Chevron’s long history of toxic dumping in Ecuador, efforts to bribe judges and government officials to fraudulently cover up the pollution, and how the harm caused by the company continues to this day. (pp. 7-30). The brief states: “Chevron’s “pump and dump” operations violated Ecuadorian law and left behind massive amounts of poison and pollution to ravage the communities of the Amazon. Toxic—and in many cases carcinogenic—chemicals continue to infect the waters that tens of thousands of indigenous people depend on for every facet of their lives.” Because the
**A section deconstructing the criminal history and lack of credibility of Chevron’s star witness, former Ecuadorian judge Alberto Guerra. (pp. 31-41). The brief points out how Guerra’s testimony is “riddled with inconsistencies” and changed after Randy Mastro, Chevron’s lead outside lawyer, personally negotiated a lucrative deal to pay Guerra hundreds of thousands of dollars in violation of U.S. law.
**A detailed legal section (pp. 43-72) that explains how Chevron “has not alleged a single concrete injury that could be remedied by the relief it seeks” (p. 45) and how the company’s case must fail for myriad reasons. Reasons Chevron’s case must fail include First Amendment protections for litigation; Judge Kaplan’s lack of authority to overrule a foreign judgment; rules barring U.S. courts from issuing advisory opinions; the fact the RICO statute does not authorize private parties to seek injunctive relief; and the fact Chevron never contested the underlying merits of the Ecuador judgment, thus conceding that the Ecuador case is legitimate.
“The Ecuadorian plaintiffs’ legal right to recovery is uncontested,” the brief states. “As three levels of the Ecuadorian judiciary have unanimously concluded—and as Chevron has made no attempt to dispute in these proceedings—the record evidence amply demonstrated that Chevron was responsible for environmental contamination greatly exceeding the legal limits in Ecuador.”
“”No U.S. trial judge had the power under any conceivable law to overturn a decision affirmed by a foreign nation’s Supreme Court, as has happened in Ecuador,” said Gowen. “Chevron has no place to go here. The company is facing a legal dead end in the coming months.”
Dec. 24, 2013