Washington, DC – Leading civil society groups have submitted two briefs to the U.S. Supreme Court blasting Chevron and its law firm Gibson Dunn & Crutcher for falsifying evidence and trying to intimidate environmental activists to help the company evade a historic $9.5 billion environmental liability in Ecuador.
A legal brief submitted by the environmental groups Amazon Watch and Rainforest Action Network accuses the oil giant and its lawyers of “faking a bribery scandal” and paying a corrupt witness more than $2 million to lie to U.S. federal judge Lewis A. Kaplan, in addition to trying to corrupt the trial in Ecuador.
“After securing dismissal of the original litigation from New York, Chevron tampered with evidence of pollution, lied to the Ecuadorian court, paid millions of dollars to avoid damaging testimony, and sought to entrap a judge in a fabricated bribery scandal, creating the appearance of corruption in order to prevent enforcement if it lost in Ecuador,” said the brief.
The legal brief was submitted in support of an appeal asking the High Court to throw out a highly controversial civil ruling by Kaplan in 2014 that the Ecuador judgment against Chevron was part of a “racketeering” scheme and could not be enforced in the United States. (For background on how Chevron and Kaplan made a mockery of justice in the “racketeering” or RICO case, see here.)
The communities in Ecuador affected by the pollution originally filed their case against Chevron in U.S. federal court in 1993, but it was sent to Ecuador for trial at the company’s insistence. At the time, Chevron agreed to jurisdiction in Ecuador and promised to abide by any adverse judgment but it betrayed that promise once it lost the case.
In Chevron’s retaliatory RICO case, Kaplan ruled for Chevron after crediting patently false testimony from the company’s star witness, Alberto Guerra. After Chevron officials paid $38,000 in cash to Guerra out of a suitcase and promised him at least $2 million more in payments and benefits, Guerra testified before Kaplan that he was in a meeting where the plaintiffs agreed to pay a bribe to the Ecuador trial judge.
Guerra offered no corroborating evidence and later admitted he lied repeatedly on the stand about key portions of his testimony. Guerra also admitted to paying and accepting bribes at least 20 times in Ecuador when practicing as a lawyer or presiding over cases as a lower court judge.
Two Chevron-paid lawyers at the Gibson Dunn law firm, Randy Mastro and Avi Weitzman, led the coaching of Guerra for 53 days before he testified. Others from Gibson Dunn who participated on the team that coached Guerra were Andrea Neumann and Reed Brodsky. (For details of Chevron’s bribe of Guerra, see here. For details on how Gibson Dunn has been caught fabricating evidence, see here.)
The underlying environmental judgment against Chevron – issued in Ecuador in 2011 after an eight-year trial – found that the oil giant deliberately dumped billions of gallons of toxic waste into Ecuador’s rainforest, decimating indigenous groups and causing an outbreak of cancer and other oil-related health problems. The judgment was affirmed by a unanimous opinion from the Supreme Court of Ecuador. A second Supreme Court, in Canada, also upheld portions of the decision in a ruling in 2015 after the villagers filed an enforcement action in that country.
(Here is a summary of the overwhelming evidence against Chevron as found by Ecuador’s courts.)
The brief from the environmental groups warns that Kaplan’s ruling will cause “judicial chaos” given that Chevron insisted the trial be held in Ecuador, only to ask a U.S. court to try to nullify that judgment when it lost the case. Kaplan’s endorsement of a collateral attack against a foreign judgment is something that has never happened before in 241-year history of the U.S., according to lawyers on the case.
The brief also warns that Kaplan’s decision creates a huge danger that disaffected litigants from foreign jurisdictions will flood American courts when they lose their cases, leading to “unending” cycles of litigation. Under this scenario, the brief warns, U.S. judges risk both looking foolish and violating international law if they try to be the final arbiters of all judicial decisions worldwide, as Kaplan has attempted to do.
Although he refused to consider any evidence of Chevron’s environmental record in Ecuador, Kaplan had boasted that he alone would “decide” the matter for all countries where the affected communities might file enforcement actions to collect on their judgment. The Ecuadorian villagers are currently pursuing such actions in Canada and Brazil where courts are refusing to abide by Kaplan’s decision. Courts in both countries have rejected Chevron’s attempts to deny jurisdiction to the villagers as they attempt to seize company assets.
For officials at the environmental groups, Kaplan’s decision presents an important challenge for the U.S. Supreme Court that is likely to attract the attention of judges and scholars throughout the world.
“The justices now have undisputed evidence that an American company tried to undermine a valid foreign court judgment by corrupting a U.S. judicial proceeding,” said Paul Paz y Miño, Associate Director of Amazon Watch. “This is just shocking. The issue is whether the Supreme Court will step in and protect the integrity of our courts, or let an oil company get away with manipulating evidence to to cover up the fact its pollution is literally killing off indigenous and farmer communities in the Amazon.
“The Supreme Court must also ensure that our judicial system is not manipulated by corporate polluters like Chevron that abuse the law to intimidate its adversaries,” Paz y Miño added.
In a second amicus brief submitted to the Supreme Court in the case, 15 other environmental and human rights groups asserted that Chevron’s inappropriate use of the RICO statute was intended to silence civil society organizations seeking to hold the company accountable for its toxic dumping.
Those groups criticized Kaplan for ruling that normal advocacy by civil society groups, such as issuing press releases and pressuring shareholders, were part of an illegal “extortion” racket by the villagers to force Chevron to settle the case. The brief asserts that Kaplan’s ruling violates the right to free speech protected by the First Amendment and thereby threatens the rights of all civil society groups who might try to hold corporations accountable for wrongdoing.
“Corporate accountability advocates must not be at risk from legal action from U.S. corporations for expressing their First Amendment rights to free speech,” said Erich Pica, President of Friends of the Earth, one of the civil society groups that signed on to the second brief. “As it stands, [Kaplan’s] decision endangers the very foundation of human rights and environmental advocacy.”
Chevron’s sub-standard environmental practices in Ecuador, its fraudulent cover-up, and forum shopping in courtrooms around the world has been extensively documented for more than two decades and affirmed by numerous independent journalists.
After trying for years to block a trial about its contamination, Chevron agreed to jurisdiction in Ecuador to avoid a jury of impartial fact finders in the United States. It later dropped all damages claims just prior to the RICO trial date, also to avoid a jury. (Under U.S. law, a jury is afforded in a civil case only when the defendant is sued for monetary compensation.)
The team at Chevron’s law firm of Gibson Dunn & Crutcher that worked with Guerra has been sanctioned by other federal judges for engaging in unethical conduct during the RICO matter. The law firm, which has marketed itself as a “rescue squad” for corporations plagued by scandal, is also under scrutiny for engaging in numerous unethical acts in other cases – including one where the High Court of London found that a lawyer from the firm fabricated evidence to help a client frame a political opponent.
During Chevron’s retaliatory racketeering trial in the Ecuador matter, Kaplan made a series of hostile statements about the villagers while he encouraged Chevron to pound its adversaries by filing hundreds of motions. One prominent attorney who defended the case, John Keker, launched a blistering critique of Kaplan and accused him of letting the matter “degenerate into a Dickensian farce.” Another attorney, Craig Smyser, said the Kaplan proceeding was more suited for the Spanish Inquisition than for U.S. courts.
Kaplan’s additional “finding” that Ecuador’s entire judiciary is illegitimate – apparently the first such wholesale attack on the judiciary of a U.S. ally in history – also has been condemned by leading law scholars around the world as a violation of international law.
Donziger, the main target of a Chevron’s RICO case, said the briefs from the environmental groups are “critically important to underscore the level of deep support the affected communities in Ecuador have throughout the world.”
“I can assure all supporters of the communities that legal efforts to hold Chevron and its executives accountable for the toxic dumping in Ecuador will continue until there is a full recovery and a clean-up is completed,” he said.
Luis Yanza, an Ecuador community leader and winner of the prestigious Goldman Environmental Prize, said the villagers would continue their campaign regardless of any decision by the U.S. Supreme Court.
“The reality is that U.S. courts have let us down for more than two decades as we have sought justice against an American company that harmed our lands and people,” he said.
“From our perspective, it is good that the U.S. Supreme Court will now be forced to show its hand and decide whether it will be a fair arbiter of justice, or merely another vehicle to protect a greedy American corporation that harmed vulnerable people to increase its profits,” he added.