In New Attack, Chevron Trying to Disbar Lawyer Who Helped Win Historic $9.5 Billion Judgment After 8-Year Trial
NEW YORK - Faced with a series of stunning legal setbacks in the world’s largest environmental case, Chevron is now trying to orchestrate what appears to be a politically-motivated disbarment of American human rights lawyer Steven Donziger after he helped indigenous and farmer communities win a $9.5 billion judgment against the company over the dumping of billions of gallons of toxic oil waste onto ancestral lands in Ecuador’s Amazon rainforest.
The move comes at a time when Chevron is stepping up its attacks on the indigenous groups and their lawyers following three consecutive unanimous defeats in Canadian appellate courts – including one by Canada’s Supreme Court – in a country where the Ecuadorians are threatening to seize vital company assets to pay for their court-mandated clean-up. Just days ago, Chevron publicly attacked prominent Canadian attorney Alan Lenczner after he won the right to depose a high-level corporate official over what appear to be billions of dollars of irregular payments by the company’s Canadian subsidiary to the governments of Nigeria and Indonesia.
Chevron also recently lost an effort in the Ontario Court of Appeal to impose a $1 million costs order on the indigenous groups in an effort to prematurely end the asset seizure litigation. A three-judge panel unanimously criticized the company for trying to end-run the law rather than deal with credible allegations it had committed fraud both in Ecuador and the United States, all of which has a led to a criminal referral of the company to the U.S. Department of Justice.
“Whenever Chevron senses that it is losing the litigation despite spending at least $2 billion in its defense, the company starts attacking the impoverished Ecuadorian indigenous peoples and their lawyers in a futile effort to silence advocacy,” said Karen Hinton, the longtime U.S. spokesperson for the Ecuadorians and the former press secretary for New York City Mayor Bill DeBlasio. “This has been going on for years and it has never worked.”
In the bar matter, Chevron and a U.S. federal judge are seeking to summarily suspend Donziger without a hearing by claiming he is an “immediate threat to the public order” for helping to win the environmental judgment in 2011 in Ecuador’s courts after the company insisted the trial be held there and had accepted jurisdiction. Chevron’s move also comes after prominent national leaders in Canada, including former National Chief Phil Fontaine and Grand Chief Ed John along with Greenpeace co-founder Rex Weyler, heavily criticized the company’s refusal to clean up the toxic waste it dumped onto ancestral lands of the Amazon. It also comes seven years after the Ecuador judgment issued.
(Donziger’s responses to the bar complaint can be found in this 12-page letter and in this legal brief supported by these exhibits. See here and here for comments by Greenpeace’s Weyler calling out Chevron for committing “ecological crimes” in Ecuador. Also, see Donziger’s background article criticizing Chevron.)
Chevron is demanding that the New York Grievance Committee (which governs attorney ethics) deny Donziger the opportunity to contest the findings from a highly controversial civil RICO decision in 2014 issued by U.S. trial judge Lewis A. Kaplan without a jury. After crediting the testimony of an admittedly corrupt Chevron witness (Alberto Guerra) who was paid $2 million by the company – and after insulting the villagers by calling them the “so-called plaintiffs” and saying he “got it from the beginning” before hearing evidence -- Kaplan ruled that the environmental judgment in Ecuador was obtained by fraud. The Kaplan ruling contradicts the findings of three layers of courts in Ecuador, including one by the country’s Supreme Court, all of which validated the judgment against Chevron.
(For a detailed rebuttal to the Kaplan findings and an account of the false testimony used by Chevron, see Chevron’s RICO Fraud. Also, see this press release and this referral letter to the United States Department of Justice seeking a criminal probe of Chevron.)
In a referral letter to the grievance committee, a longtime colleague of Kaplan’s – Judge P. Kevin Castel – cited the RICO findings as the basis to sanction Donziger without mentioning the paid-for witness testimony or the litany of other problems with the proceeding, described as a “Dickensian farce” by prominent trial lawyer John Keker (see here and here) and attacked in this legal brief from Earth Rights International and in the fact section of Donziger’s brief. Castel also planted the idea that Donziger should be denied a hearing where he could present critical new evidence that undermines Kaplan’s findings as well as evidence of the voluminous scientific sampling results that demonstrated Chevron’s responsibility for dumping toxic waste at more than 1,000 well sites. (See this summary of the evidence against Chevron that was largely excluded by Kaplan.)
Numerous legal observers (see here, here and here) have published evidence of Chevron’s criminality and attacked the serious flaws in the RICO proceeding, including the judge’s deep-seated personal animus toward the Ecuadorians. Kaplan’s ruling in favor of Chevron contradicts the findings of 21 separate appellate judges in Ecuador and Canada who have affirmed all or parts of the Ecuador judgment.
Castel, the referring judge, also appears to have a personal relationship with Jorge Dopico, the chief attorney of the grievance committee that is moving against Donziger. (See p. 10 of this letter.) Dopico and a staff attorney at the committee, Naomi Goldstein, ignored Donziger’s initial response from February 2017 outlining why the Kaplan decision could not credibly be used as a basis to impose attorney discipline given that Ecuador’s courts had rejected the same Chevron allegations on a far fuller evidentiary record. Dopico and Goldstein also refused Donziger’s offer to cooperate with any inquiry.
Donziger’s supporters criticized the grievance committee for trying to sanction him without a hearing where he could present evidence.
“We see the effort by Chevron and its allies to silence Steven as a form of political retaliation designed to harm a courageous lawyer who took on Big Oil in court and won,” said Patricio Salazar, the lead Ecuadorian lawyer on the case. “The lawyers who committed wrongdoing are those from Chevron’s law firm who tried to frame Steven and the Ecuadorian indigenous peoples with false evidence. The grievance committee unfortunately is acting like an arm of a deeply self-interested corporation and a highly partisan judge, not a disinterested judicial body.
“Steven is a determined lawyer and a person of deep compassion who is beloved by his many clients in Ecuador,” added Salazar. “It is not a threat to the public order for a lawyer to use courts to try to create a world where an American company like Chevron can’t so easily stampede over vulnerable indigenous groups by dumping toxic waste. The real threat to the public order is Chevron and its refusal to pay court judgments, not Steven.”
Other lawyers familiar with Kaplan’s decision voiced similar concerns.
“The grievance committee’s action against Donziger is astonishing and could seriously stain the reputation of the grievance system in New York generally,” said Aaron Page, a lawyer involved in the case. “The findings at issue resulted not from a genuine complaint by an aggrieved client, but from a troubling strategic attack by an oil company designed to knock out disfavored adversary counsel and to taint a major environmental judgment. The grievance committee’s attack should be seen as an extension of this Chevron-led strategic attack on Donziger’s environmental work in Ecuador.”
“From the perspective of international human rights, the committee has offered itself as a platform for judicially harassing a well-known human rights defender who is challenging deeply entrenched economic interests,” added Page. “It’s a disappointing development.”
Numerous legal commentators blame lawyers from Chevron’s outside firm, Gibson Dunn & Crutcher, for the presentation of the false Guerra testimony to try to pin the stigma of criminality on Donziger. (See pp. 11-16 of Chevron’s RICO Fraud for the many problems with Guerra’s testimony.) A team of lawyers at the firm, headed by former deputy New York City mayor Randy Mastro and former federal prosecutor Avi Weitzman, coached Guerra for an almost unheard of amount of time -- 53 days -- prior to allowing him to take the stand in the RICO case.
The Gibson Dunn firm has been dogged by a series of ethics complaints in recent years, including another case where it was caught trying to frame an innocent man with false evidence. (See here.) Guerra later admitted he had perjured himself repeatedly in the RICO matter.
Chevron lawyer Mastro also negotiated the content of Guerra’s testimony in exchange for at least $2 million in benefits during a meeting in Chicago in the lead-up to the trial. Part of Chevron’s benefits package for Guerra included a monthly salary more than 20 times higher than what he had been making in Ecuador as well as a housing allowance, health care, a car, the payment of all income taxes, and payment of legal fees to obtain political asylum in the United States for himself and several members of his extended family. (See this legal filing and this press release for more background on Guerra’s corruption.)
Donziger, who also is a member of the District of Columbia bar, said he does not believe the efforts to sanction him in New York will be successful. In any event, he said he would continue his advocacy for the Ecuadorian rainforest communities regardless. “Chevron will not be able to use its intimidation campaign to silence the advocacy of me or any of the scores of people around the world who are working to hold the company accountable for its human rights violations against indigenous groups in Ecuador,” he said.
“My view is that the size of the judgment obtained by the rainforest communities of Ecuador is creating intense anxiety for Chevron,” he added. “The latest attacks are part of a long-running pattern of gamesmanship which has implications for all lawyers who do human rights work. By attacking me, Chevron hopes to impose a deep freeze on human rights advocacy generally and to discourage young people from engaging in the hard work necessary to hold powerful corporations accountable for environmental harms.”
The move against Donziger is just the latest Chevron attack in a demonization campaign that has stretched on for years and involved at least 60 law firms and 2,000 legal personnel paid by the company.
In 2009, a high-level Chevron official sent an email outlining Chevron’s long-term defense strategy in the Ecuador case was “to demonize” Donziger. The company then spent upwards of $15 million to hire the corporate espionage firm Kroll to trail Donziger and his family and prepare at least 20 reports documenting every aspect of his personal life, all in an effort dig up “dirt” on the lawyer. Several Chevron lawyers, led by Andrea Neumann of Gibson Dunn, have been speaking at industry oil and gas industry conferences to market their anti-human rights litigation playbook and to urge that Donziger be disbarred.
Later, a high-level Chevron official threatened the indigenous groups and farmer communities of Ecuador with a “lifetime of litigation” if they continued to pursue the case. Chevron General Counsel Charles James said, “We will fight this until hell freezes over, and then fight it out on the ice.” The company has continually vowed to never pay the Ecuador judgment.
In December of last year, Donziger infuriated Chevron when he helped unite the leaders of the national indigenous federations of both Canada (which represents 634 nationalities) and Ecuador (35 nationalities) to hold the company accountable for environmental damage and violations of indigenous rights in both countries. (See here.) Donziger recently called out Judge Kaplan for engaging in a series of biased acts that leave at least the appearance of judicial corruption – including authorizing Chevron to secretly move millions of dollars in fees to the private bank account of court official Max Gitter, a personal friend of the judge who was repeatedly accused of bias in favor of Chevron.
Ecuador’s courts found that Chevron dumped at least 15 billion gallons of toxic waste into the Amazon when it operated in the country in the 1970s and 1980s, decimating indigenous groups and killing scores of people with cancer and other oil-related diseases. The trial lasted from 2003 to 2011, with the trial court judgment against Chevron being affirmed unanimously on appeal by Ecuador’s Supreme Court in 2013. (Here is a summary of the evidence against Chevron relied on by Ecuador’s courts; a summary of studies documenting high cancer rates; and, the Ecuador Supreme Court decision.)
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