Rainforest Groups Blast U.S. Judge Kaplan for Ruling Designed to Help Chevron Evade $9.5b Pollution Liability
NEW YORK - A little-noticed ruling in late February by controversial U.S. federal judge Lewis A. Kaplan in Chevron’s $9.5 billion Ecuador pollution case already is damaging the judge’s personal credibility and backfiring against the oil giant in Canada where rainforest villagers are attempting to seize company assets to pay for a court-ordered environmental clean-up, according to statements issued by the communities and their U.S. legal representative.
“After a long period of welcome hibernation by Judge Kaplan during which his earlier rulings for Chevron have been discredited by new and incontrovertible evidence, he once again has emerged from the shadows to demonstrate his uniquely American-colonialist bent when it comes to the rights of indigenous peoples and farmer communities in Latin America,” said Carmen Cartuche, the President of the Front for the Defense of the Amazon, the group that brought the environmental case against Chevron on behalf of indigenous and farmer communities that resulted in a $9.5 billion judgment against the company.
“Whenever Kaplan rules against us, it always seems to produce further evidence of Chevron’s fraud and corruption and illustrates the bias of the U.S. justice system in favor of a powerful U.S. company when it comes to the legitimate claims of impoverished people in Ecuador,” she added.
In 2014, relying on an admittedly corrupt Chevron witness paid at least $2 million by the company, Kaplan refused to seat a jury and ruled that the Ecuador judgment was procured by fraud. It later was disclosed that the Chevron witness, Alberto Guerra, had lied repeatedly on the stand, leading to a criminal referral of Chevron and its lawyers to the U.S. Department of Justice. When negotiating his fee with Chevron lawyer Randy Mastro, Guerra blurted: "Money talks, but gold screams."
Kaplan has yet to correct his ruling crediting Guerra and instead doubled down in a new decision issued February 28 trying to impose $813,000 in court costs on the Ecuadorians and their U.S. attorney. He also has refused repeated requests by counsel for the Ecuadorians to depose the Chevron attorneys who coached Guerra for a stunning 53 days before allowing him to present his false testimony. (See media reports here and here on Guerra’s false testimony and here for a letter from dozens of environmental groups criticizing Chevron over its litigation tactics in the case.)
In a separate statement, U.S. human rights attorney Steven Donziger – who has represented the affected communities in Ecuador since the inception of the case in 1993 -- criticized Kaplan for denying discovery of the Chevron lawyers and for ignoring multiple court rulings in Ecuador and Canada that validate findings that Chevron dumped billions of gallons of toxic oil waste into Ecuador’s Amazon region, decimating indigenous groups and causing an outbreak of cancer. Locals call Chevron’s environmental disaster the “Amazon Chernobyl”. (Here is a summary of the evidence against Chevron and the studies showing high cancer rates .)
In his recent ruling, Kaplan tried to order two Ecuadorian citizens from the rainforest and Donziger to reimburse Chevron for costs associated with creating the false Guerra testimony. Donziger is a sole practitioner who works out of his apartment in Manhattan, where he lives with his family. He has described the Chevron motion and Kaplan’s decisions as a SLAPP-style effort to silence environmental groups and other advocates working on the case. (SLAPP cases generally are filed by corporations not for a legitimate purpose, but rather to silence and intimidate critics.)
“Judge Kaplan’s latest costs ruling relying yet again on Chevron’s false evidence is an attack on all human rights defenders and environmental organizations in violation of international law,” said Donziger. “It is an intimidation and silencing mechanism by Chevron laundered through a U.S. federal judge who grabbed the case for himself in violation of local court procedures. We will continue to highlight these ultimately toothless rulings by Kaplan as they actually help strengthen the arguments of the Ecuadorians as their judgment gets enforced in Canada against company assets.”
Kaplan became a lightening rod for criticism in 2011 when he encouraged Chevron lawyers to file the fraud case and then assigned it to himself. Kaplan later called the Ecuadorian indigenous groups the “so-called plaintiffs” and characterized Donziger as a “public relations flak” even though he graduated from Harvard Law School in the same class as President Obama and has been practicing for 26 years. (Chevron and a judicial colleague of Kaplan are now urging Donziger’s disbarment in New York based on Kaplan's erroneous findings without even providing him a hearing.)
Prominent U.S. attorney John Keker later charged Kaplan with letting the Chevron fraud trial degenerate into a “Dickensian farce” where he excluded key evidence of Chevron’s pollution, refused to let Donziger or the indigenous victims tell their story in open court, and later tried to overturn a ruling from Ecuador’s Supreme Court. At one point, Kaplan was unanimously reversed on appeal when he issued a global injunction to prevent the rainforest villagers from enforcing their judgment against Chevron’s assets anywhere in the world – something that no court had ever attempted, given that it clearly violates international law principles.
In his latest ruling on costs, Kaplan ignored the new evidence regarding Chevron’s false witness testimony that contradicts his original findings. He also ignored Canadian court proceedings, where the Ecuadorians have won three consecutive appellate decisions and where all 12 appellate judges to hear the case have either ignored or rejected Judge Kaplan's findings.
Kaplan also has been harshly criticized for authorizing Chevron to make what appear to be millions of dollars of secret payments to the personal bank account of a U.S. court official and friend of the judge, Max Gitter. (See here for background.) Kaplan had appointed Gitter as a Special Master at Chevron’s request and the costs order is designed to punish the Ecuadorian communities by forcing them to personally reimburse Chevron for his costs, the totality of which are unknown, said Donziger.
“The larger issue is that Judge Kaplan’s latest ruling represents a doubling down of his original flawed RICO decision that now has been contradicted in whole or in part by the findings of 21 separate appellate judges in Canada and Ecuador,” Donziger said in a statement issued today. “Judge Kaplan yet again ignores the fact Ecuador’s Supreme Court unanimously found based on scientific evidence that Chevron deliberately dumped billions of gallons of toxic waste into Ecuador’s Amazon rainforest, decimating indigenous groups and causing an outbreak of cancer that has claimed thousands of victims. This ruling against Chevron was issued from the jurisdiction where Chevron insisted the trial be held and where it had accepted jurisdiction.
“Judge Kaplan's continued and disturbing acceptance of Chevron's fabricated evidence without correcting his original mistake not only reflects poorly on his personal integrity, but continues to help the affected communities in Ecuador by illustrating the lengths to which Chevron will go to commit corrupt acts to evade its liability,” Donziger added in the statement.
Donziger’s full statement is below.
Statement of Steven Donziger in response to Judge Kaplan’s ruling of February 28, 2018:
Judge Kaplan’s latest ruling is defensive in tone and represents a doubling down of his original flawed RICO decision that has been contradicted in whole or in part by the findings of 21 separate appellate judges in Canada and Ecuador. Judge Kaplan yet again ignores the fact Ecuador’s Supreme Court unanimously found Chevron deliberately dumped billions of gallons of toxic waste into Ecuador’s Amazon rainforest, decimating indigenous groups and causing an outbreak of cancer that has claimed thousands of victims. The decision also ignores critical new evidence that emerged after the RICO matter ended that has not been considered by any U.S. court. This evidence, heard in other legal proceedings and detailed in our report Chevron’s RICO Fraud, definitively and forensically proves there was no "bribery" or “ghostwriting” in Ecuador and that those particular findings by Kaplan were based on paid-for and false witness testimony orchestrated by Chevron to evade its liability to the indigenous communities it harmed.
Fortunately for the Ecuadorians who won the judgment against Chevron, the facts of this matter have been resolved in their favor by three layers of courts in the jurisdiction where Chevron insisted the trial be held. Nothing Judge Kaplan decides at this juncture can change the fact that Chevron lost the underlying case in the forum of its choosing and that it subsequently lost three consecutive unanimous appellate decisions in Canada where the affected communities are well on their way to seizing company assets. Judge Kaplan's continued and disturbing acceptance of Chevron's fabricated evidence without correcting his original mistake not only reflects poorly on his personal integrity, but continues to help the affected communities in Ecuador by illustrating the lengths to which Chevron will go to commit corrupt acts to evade its liability.
On the issue of fees, Judge Kaplan’s decision to try to force a human rights attorney who represents indigenous groups to pay exorbitant sums to cover Chevron's expenses related to the fabrication of witness testimony is an act of desperation by a judge whose credibility has been grievously damaged after the entire RICO findings collapsed like a house of cards. The Kaplan fee order also demonstrates the lengths to which Chevron will go to try to demonize adversary counsel rather than meet its ethical and legal obligations to the people of Ecuador. Judge Kaplan’s rulings in this regard will continue to backfire against Chevron in enforcement courts in Canada and elsewhere.
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