Chevron Fabricated Evidence in U.S. Court to Evade $12b Liability to Indigenous Peoples of Ecuador, Report Says
NEW YORK - A controversial U.S. trial-level judge ignored undisputed evidence that Chevron paid at least $2 million for false witness testimony and fabricated other evidence to obtain a discredited civil “racketeering” (or RICO) decision that company lawyers are now trying to use in Canada to block enforcement of the $12 billion pollution judgment from Ecuador, according to a report Chevron’s RICO Fraud.
Written by lawyers for the Ecuadorian Indigenous peoples and farmer communities that won the environmental judgment against Chevron, the report comes on the heels of a tough week for the oil major in Canadian courts. A three-judge panel in the Court of Appeal of Ontario shut down a Chevron lawyer when he tried to suggest the RICO matter should stop a lawsuit brought by the Ecuadorians to seize company assets in the country to enforce their judgment. The Ecuadorians seeking to force Chevron to comply with the judgment have now won three consecutive appellate court victories in Canada, including one before the country’s Supreme Court.
A fourth consecutive favorable decision in Canada for the Ecuadorians – the Ontario appellate court is expected to rule this summer after argument on April 17-18 – would allow them to try to seize Chevron assets currently held by the company’s wholly-owned Canadian subsidiary to pay for their judgment. The pollution judgment against Chevron issued in 2011 based on 105 technical evidentiary reports showing the oil major dumped billions of gallons of cancer-causing oil waste onto Indigenous ancestral lands. It was later affirmed unanimously by Ecuador’s highest court in the venue where the company insisted the trial be held.
To try to block the asset collection effort, Chevron has tried to argue Chevron Canada is a separate and independent company even though 100% of its shares are owned by Chevron. The decision is critical because of all of Chevron’s estimated $15 billion to $25 billion worth of assets in Canada are held by Chevron Canada. (See this summary of the evidence against Chevron.)
The report about Chevron’s fraud rebuts 12 false or distorted findings by U.S. trial judge Lewis A. Kaplan in the RICO case. The findings were based primarily on discredited testimony from an admittedly corrupt Chevron witness paid $2 million by the company to claim that lawyers for the Ecuadorians offered a bribe to the Ecuador trial judge in exchange for “ghostwriting” the judgment. The Chevron witness, Alberto Guerra, later admitted he had lied on the stand after being coached for 53 days by Chevron’s lawyers. (See here and here for media reports.)
The report also documents Judge Kaplan’s hostility toward the Ecuadorians and their lawyers in a proceeding that amounted to a “Dickensian farce”, according to a legal motion filed by prominent U.S. lawyer John Keker, who participated in the case (see here for background). Kaplan refused to seat a jury and committed numerous procedural violations to favor Chevron, including allowing secret testimony from witnesses whose identities were concealed from the defense, according to the report. Kaplan also authorized Chevron to secretly pay the fees of a court official while failing to disclose his financial ties to Chevron while presiding over the trial.
The report is being put in the public domain after dozens of law scholars, environmental groups, and human rights organizations urged reversal of Judge Kaplan’s ruling on the grounds that it failed to consider Chevron’s fabrication of evidence and overstretched the authority of the U.S. to judiciary to interfere with court decisions in other countries, said Patricio Salazar, a lawyer who represent the Ecuadorians. A U.S. appellate court later affirmed Kaplan’s RICO decision without any independent review of his problematic findings.
Just last week – apparently in response to the fact the Canadian court refused to hear argument about the RICO findings – Judge Kaplan again tried to bar the Ecuadorian rainforest villagers from collecting on the judgment in the entire world, even in Canada. That trial-level decision, like many Kaplan has issued, was widely condemned as a violation of international law and is seen by experts as an attack on Canada’s sovereignty, which has its own laws governing the enforcement of foreign judgments. A previous attempt in 2011 by Kaplan to issue an order from his trial court purportedly barring enforcement of the Ecuador judgment in the entire world was overturned on appeal in the United States.
Both Chevron and Judge Kaplan seem increasingly anxious over recent setbacks for the oil giant in what is shaping up to be a historic campaign by the Ecuadorian Indigenous peoples and farmer communities who live in the affected area.
Last December, the Amazon Defense Coalition of Ecuador (FDA) – the NGO group enforcing the judgment – signed a joint protocol with Canada’s powerful national Indigenous federation (Assembly of First Nations) to hold Chevron accountable for causing environmental harms in both countries. Canada National Chief Perry Bellegarde and former Canada National Chief Phil Fontaine sat in court in Toronto with the Ecuadorians; Fontaine and Grand Chief Ed John harshly criticized Chevron for failing to address the concerns of the Indigenous peoples after a tour of the affected area last September.
Another prominent Canadian Indigenous leader, Cree lawyer Willie Littlechild, blasted Chevron over its Ecuador pollution problem two weeks ago before a plenary session of the United Nations Permanent Forum on Indigenous Issues in New York. "This is considered the world's worst oil-related environmental catastrophe," he said. "The peoples of the region have not only seen their ancestral lands drastically reduced and restricted, but also poisoned, degraded, and destroyed."
The Chevron fraud report explains how the paid-for Chevron witness, Alberto Guerra, admitted under oath in a separate arbitration proceeding that he lied on the stand before Judge Kaplan. Later, a forensic analysis by one of the world’s leading computer experts scientifically debunked Guerra’s ghostwriting story. Both of these critical developments were ignored by Judge Kaplan, who has been subject to harsh reviews by lawyers across a number of cases for his perceived pro-business bias and lack of neutrality.
Guerra’s changing stories about a bribe were honed in daily coaching sessions with Chevron lawyers at the U.S. law firm of Gibson Dunn & Crutcher that spanned several weeks, according to Guerra’s own admissions. Chevron is still paying Guerra a large salary, housing costs, health care and his personal income taxes while maintaining him in a secret location in the U.S., according to court records. The company agreed to pay Guerra $12,000 monthly for no work other than being a witness under the company’s control, according to his contract with Chevron.
The Ecuadorians have long claimed that Chevron officials and its outside lawyers conspired to fabricate false evidence through Guerra’s testimony and present it to U.S. courts as part of a long-running campaign to evade paying the Ecuador liability, which was issued based on overwhelming evidence in the venue where the company had accepted jurisdiction. Lawyers for the villagers also have asked the U.S. Department of Justice to investigate whether the payments to Guerra violated criminal statutes. (See here for a criminal referral letter of Chevron to the DOJ.)
The forensic analysis, conducted under the auspices of an international investor arbitration panel overseeing a lawsuit filed by Chevron against Ecuador’s government, proved the Ecuador trial judge opened and saved a Word document that became the judgment more than 400 times over a three-month period prior to its issuance. This contradicts Chevron’s claim based on the Guerra testimony that the judgment was written by the plaintiffs and given to the judge on a flash drive.
The report also names some of the individuals at Chevron law firm Gibson Dunn who orchestrated the fabrication of evidence on behalf of the company. They include Randy Mastro, the former deputy mayor of New York City under the administration of current Trump lawyer Rudy Giuliani. Gibson Dunn advertises itself as a “rescue squad” for scandal-plagued clients, but the firm frequently has been criticized and sanctioned for ethical violations.
In the Chevron case, a federal judge in Oregon scolded the firm for trying to harass a non-profit group that was working to assist the Ecuadorian legal team. In an echo of its current problems in the Chevron case, Gibson Dunn recently was sanctioned by the High Court of London for fabricating evidence to help frame a political opponent of a client from Djibouti. Montana’s Supreme Court also accused the firm of engaging in “legal thuggery” and fined it $9.9 million.
Other amicus briefs filed before U.S. courts (see here and here) argue that Judge Kaplan’s RICO decision violates international law and amounts to an unconstitutional SLAPP-style lawsuit. SLAPP lawsuits are designed by corporate or governmental entities to harass opponents and to silence criticism in violation of Free Speech guarantees in the U.S. Constitution and international law.
After an eight-year trial that lasted from 2003 to 2011, the Ecuador court found that Chevron dumped billions of gallons of toxic waste into the rainforest when it operated more than 400 well sites (under the Texaco brand) from 1964 to 1992. The company’s sub-standard operational practices decimated Indigenous culture and caused an outbreak of cancer that has killed or threatens to kill thousands of people, according to independent health studies.
As evidence against it in Ecuador mounted, Chevron began to attack the country’s courts while threatening the villagers with a “lifetime of litigation” if they persisted. “We will fight this until hell freezes over, and then fight it out on the ice,” said Chevron’s General Counsel, Charles James. Chevron has used at least 60 law firms and 2,000 lawyers to defend the company since the inception of the case; Donziger litigated pro se in the RICO case for several months against 114 lawyers from Gibson Dunn.
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