Second Circuit Appeal Briefs and Amicus Briefs Filed


A few months ago we previewed the numerous fatal flaws in Judge Lewis Kaplan’s March 2014 final decision in Chevron’s abusive RICO case.  While the decision’s legal excesses and cavalcade of vitriol against Steven Donziger certainly gave Chevron’s management team some short-term pleasure — and vindicated the company’s dramatic eve-of-trial decision to drop all its damages claims in order to deny Donziger the right to a jury — they left Chevron (and Kaplan) with serious and even fatal long-term problems on appeal and beyond.

In July, the first round of briefs in the appeal of Kaplan’s decision were turned over to the Second Circuit Court of Appeals.  These briefs outline in great detail the abusiveness of Chevron’s disingenuous “racketeering” case and the fundamental illegitimacy of Kaplan’s decision.  The briefs are posted below.  They are long, but worth reading for anyone who wants to form a serious opinion about the state of justice in the Chevron case.

Appeal brief of Steven Donziger

Donziger’s brief explains — based on Chevron’s own internal documents — how the entire case against him was conceived and promoted primarily to “demonize” him as a means for the company to distract global public attention away from its crimes in Ecuador and to avoid paying an Ecuadorian environmental judgment that has now been affirmed by Ecuador’s Supreme Court.  The brief recounts how Judge Kaplan whitewashed Chevron’s use of corrupt and illegal evidence, such as paid fact witness testimony, doctored video clips, and the fruits of a massive illegal surveillance campaign, and how Kaplan’s March 2014 decision stretches the law to the breaking point by criminalizing citizen speech seeking corporate accountability and turning the “racketeering” laws into a free-wheeling weapon in a corporation’s arsenal against its critics.

More commentary and analysis of this brief is available here.  Some selections from the brief:

Drawing on its bottomless war chest, Chevron has shifted the focus from its own wrongdoing in the Amazon 
to trumped-up allegations of corruption and misconduct against the Ecuadorian trial judge, advocates for 
the rainforest communities, and every branch of Ecuador’s government. In pursuing this effort, Chevron has 
left no stone unturned, amassing staggering discovery—hundreds of hours of raw footage from a documentary 
filmmaker, two decades’ worth of litigation files, and even the personal diary of the American lawyer, Steven 
Donziger, at whom Chevron takes principal aim. Chevron’s strategy, in its own words: “demonize Donziger.”
The scale of Chevron’s efforts to avoid compensating its victims is breathtaking. But nobody should lose 
sight of the one thing that Chevron has chosen not to litigate: the fact that Chevron dumped billions of 
gallons of toxic waste into a region roughly the size of Rhode Island. Instead, Chevron has sought to 
reduce this long-running controversy to allegations that an expert report was prepared improperly and 
that an Ecuadorian trial judge was influenced inappropriately. As to the first, Ecuador’s Supreme Court 
found that Chevron could point to no law or procedure that had been violated. As to the second, Chevron’s 
case rested on a paid witness who admitted to making false statements to sweeten his deal with Chevron — a 
deal that has netted him well over a million dollars in benefits. If anyone here is guilty of bribery, 
it isn’t Steven Donziger.
Just as it did [in 2011], the court condemned the entire Ecuadorian judiciary, top to bottom, as incapable
of producing decisions worthy of respect. And it did so based on the testimony of an avowed political 
opponent of Ecuador’s current president. The district court’s unseemly display of American judicial 
imperialism is bad enough, and has already caused diplomatic friction. But it is intolerable in light of 
the history of this litigation: The only reason the case was tried in Ecuador in the first place is that 
Chevron got what it asked for.
For nearly a decade, Chevron showered praise on Ecuador’s judiciary, extolling its virtues to persuade this 
Court to move the case from New York to Ecuador. That effort succeeded, but only after Chevron promised to 
satisfy any Ecuadorian judgment subject only to the right to raise a defense in future enforcement 
proceedings. That promise has to mean something. [I]t should preclude Chevron from once again changing the 
forum and stringing its victims along across decades, courtrooms, and continents.

Appeal brief of Ecuadorian villagers Hugo Camacho and Javier Piaguaje

In this brief, prepared pro bono by legendary civil rights lawyer Burt Neuborne from New York University, the two Ecuadorians who appeared under protest to challenge Kaplan’s assertion of jurisdiction in the RICO case demonstrate that Kaplan’s ignorance of key differences between the civil law systems used in Latin America and the common law system in the U.S. led him to base his decision on attacks on the wrong judgment, i.e. the trial-level judgment rather than the subsequent de novo appellate judgment that is the key final judgment in the Ecuador case and is being enforced in other countries.  This effectively renders Kaplan’s judgment a nullity because Chevron’s few desperate attempts to impugn the appellate judgment are entirely speculative and, as Kaplan himself acknowledges, unsupported by any evidence.  The brief also shows how Kaplan’s attempt to exercise jurisdiction over two Ecuadorian residents of the Amazon region amounts to a raw “abuse of power.”

Amicus brief of international law scholars  

In this brief, 35 prominent international law experts from 11 countries – including, Australia, Austria, Spain, the U.S., and Israel – explain the many ways in which Kaplan’s decision violates binding international law and core international legal principles.  The scholars show how Kaplan is trying to unlawfully “dictate” to judges in other countries how they should rule on the enforceability of the Ecuador judgment, in direct contravention of the sovereignty of those countries and U.S. domestic law.

More commentary and analysis of the brief is available here.  Some selections from the brief:

the District Court erred in ordering relief that offends international comity. The District 
Court impermissibly attempts to impose its own terms of exclusive relief in the form of a 
constructive trust on every other court in the world. It seeks to dictate to the courts of 
the world what will happen if they recognize and enforce the underlying Ecuadorian judgment. 
This is an affront to: i) foreign courts that order the Ecuadorian judgment to be recognized 
and enforced; ii) foreign courts that cannot or would not pronounce on the systemic fitness 
of a  foreign judiciary; and iii) foreign courts that must or might prefer to order different 
relief.

Amicus brief of civil society organizations  

In this brief, several prominent U.S.-based non-profit organizations – including Amnesty International, Friends of the Earth, and Amazon Watch – show how Kaplan is letting Chevron use the RICO statute into a “SLAPP” [Strategic Lawsuit Against Public Participation] tool to trample on First Amendment rights and seek to harass and silence its critics.

More commentary and analysis of the brief is available here.  Some selections from the brief:

In essence, this case is an effort by Chevron to retaliate against Ecuadorian villagers, 
their lawyers, and their supporters for suing, bringing public pressure, and petitioning 
government agencies to hold Chevron accountable for violations of human rights. The 
district court's decision below, if allowed to stand, poses a severe threat to the rights 
to expression, association, political participation, and access to courts guaranteed by 
the First Amendment. If the vaguely defined scope and heavy penalties of RICO – enacted 
to support law enforcement efforts against organized crime syndicates – may be wielded by 
private parties against public interest groups and activists who engage in First Amendment-
protected activities to seek to hold those private parties accountable, democracy itself 
is threatened.

Amicus brief of EarthRights International  

In this brief, one of the country’s preeminent environmental and human rights organizations urges reversal on the grounds that Chevron agreed to submit to jurisdiction in Ecuador and should be bound by its rulings.

Some selections from the brief:

[The Second Circuit] is “reluctant to find foreign courts ‘corrupt’ or ‘biased,’” and has stated that, 
in order “‘to pass value judgments on the adequacy of justice and the integrity of’” an entire judicial 
system, it is not sufficient to present “‘bare denunciations and sweeping generalizations.’”  Indeed, 
“considerations of comity preclude a court from adversely judging the quality of a foreign justice 
system absent a showing of inadequate procedural safeguards, so such a finding is rare.”
It would be highly incongruous for the federal courts to express reluctance to pass judgment on a 
foreign judicial system when deciding whether a case should be litigated in a foreign forum, but then 
be quick to condemn the adequacy of another country’s legal system when it comes time to consider 
whether to respect the judgment. But that is precisely what the district court here did. At the forum 
non conveniens stage, the district court applied the usual “reluctan[ce]” to find inadequacy. But the 
court below applied a “far [less] forgiving” standard.
If anything, it should be easier to show inadequacy in the forum non conveniens context than in the 
recognition context. An inadequacy finding offends comity far more when a court denies recognition. 
In the forum non conveniens context, a court is holding only that it will defer to the plaintiff’s 
choice of a U.S. forum and thus the court’s own unquestioned ability to fairly adjudicate the case. 
That is surely less offensive than saying to the foreign forum that we will not recognize a judgment 
you have already reached, because your system is too unfair.
The district court’s approach would encourage litigants to seek forum non conveniens dismissal even 
(and perhaps especially) when they lack confidence in the foreign forum, and would reward parties 
who abandon positions they have already convinced a U.S. court to accept. Because that approach is 
a recipe for gamesmanship and legal quagmires, this Court should clarify that the standard against 
which courts judge a foreign legal system is the same in the recognition context as it is in the 
forum non conveniens context, and should not allow a party that brings a successful forum non 
conveniens motion to later challenge the adequacy of its chosen forum.

Amicus brief of Scholars of Civil Law Appellate Procedure

In this brief, comparative law scholars clarify the nature of appellate proceedings in Civil Law jurisdictions such as Ecuador.  The brief demonstrates that the final merits decision in the Ecuador was not the original February 2011 trial court decision but rather the appeals court’s January 2012 de novo decision.  As noted in other briefs, Chevron’s few desperate attempts to impugn the appellate judgment are entirely speculative and, as Kaplan himself acknowledges, unsupported by any evidence.  This reality thus reinforces the argument made in Donziger’s and the Ecuadorians’ briefs that “Chevron’s position is akin to that of a criminal defendant who complains of procedural irregularities in a trial and is retried and convicted once again, but continues to complain about the first trial in his habeas petition.”

Amicus brief of the Republic of Ecuador

In this brief, the Republic of Ecuador (ROE) shows how Judge Kaplan inappropriately and unjustifiably impugned Ecuador’s entire judicial system.  The brief notes that Kaplan’s finding regarding the Ecuadorian judiciary is based almost entirely on the discredited testimony of an Ecuadorian politician and pundit who is an avowed opponent of the current President of Ecuador and who supported his conclusions primarily with citations to his own op-eds and other reporting from the opposition press.   The brief also points out that Chevron repeatedly had praised Ecuador’s court system in the 1990s to transfer the matter from U.S. federal court (where it was originally filed in 1993) to the South American nation, and that the data shows that the system has only improved since then.  Only when the scientific evidence of toxic pollution begin to mount against Chevron in its preferred forum of Ecuador did the company switch gears and begin to attack Ecuador’s courts.

Some selections from the brief:

Paying lip service to this essential tenet of comity, Judge Kaplan professed to be “far from eager 
to pass judgment as to the fairness of the judicial system of another country.” SPA430.1 But the 
opinion below belies such reticence. Rather, it demonstrates a strident willingness to insult a U.S. 
commercial partner based on nothing more than testimony from an avowed political opponent of the 
Republic’s governing party (Álvarez), the lay opinion of a witness whose testimony Judge Kaplan 
otherwise rejected (Donziger), and U.S. State Department reports whose import Chevron successfully 
challenged in previous litigation. And Judge Kaplan does so despite his own determination that the 
Ecuadorian court decisions were not offered for their truth in the RICO action and would have been 
hearsay if they had been. These overreaches are particularly egregious in light of the fact, well 
known to Judge Kaplan, that the Republic and Chevron are currently in the midst of an international 
arbitration that does focus on, among other subjects, Chevron’s challenges to the sufficiency of 
the Ecuadorian judiciary and the correctness of the Ecuadorian court decisions. Chevron sought, 
and in Judge Kaplan found, a friendly forum to issue improper findings that it is already using 
in the pending arbitration against the Republic.
One of this Court’s sister Circuits recently, and correctly, cautioned that “[t]hough it is obvious 
that the Ecuadorian judicial system is different from that in the United States, those differences 
provide no basis for disregarding or disparaging that system.” In re Application of Chevron Corp., 
650 F.3d 276, 294 (3d Cir. 2011). Judge Kaplan’s willingness nonetheless to take aim at the Republic 
reflects a surprising disregard for the potential disruptive effect such lack of comity may have on 
the relationship between the two States.