In New Show of Support for Villagers, Experts Demand That Justices Throw Out Judge Kaplan’s RICO Decision
Washington, DC – Nineteen prominent law experts from several of the world’s leading universities are urging the U.S. Supreme Court to throw out a highly controversial decision by a federal judge designed to immunize Chevron from a $9.5 billion liability in the Ecuador pollution case, saying it puts the United States government in “blatant” violation of international law and will lead to massive forum shopping by corporate polluters to evade court judgments.
The “friend of the court” or amicus brief submitted by the 19 scholars (available here) is part of a wave of support for Amazon indigenous groups who won the historic environmental judgment against Chevron in 2011 in Ecuador. Just last week, 17 different human rights and civil society groups also filed legal briefs (see here and here) urging the Supreme Court to throw out the unprecedented federal trial court decision, asserting that Judge Lewis A. Kaplan allowed Chevron to use fabricated evidence to attack the Ecuador judgment without any legal basis under domestic or international law.
(This blog by Earth Rights International describes Chevron’s use of false evidence.)
Kaplan’s decision represents the first time in the 241-year history of the United States that a federal trial court has allowed a private party to collaterally attack a foreign court judgment where it accepted jurisdiction, according to the main legal brief already before the Supreme Court, submitted by New York human rights attorney Steven Donziger. Donziger is the longtime legal advisor to the Ecuadorian indigenous villagers who won the judgment and he is now the main target of an avowed Chevron “demonization” campaign designed to distract public attention from the company’s liability, which has grown to roughly $12 billion with statutory interest.
The move by the law scholars to file an amicus brief before the U.S. Supreme Court stems from a decision in 2013 by Ecuador’s highest court (known as the National Court of Justice) affirming that Chevron deliberately dumped billions of gallons of toxic waste into the rainforest, decimating indigenous groups and causing an outbreak of cancer that has killed or threatens to kill thousands of people. That decision was based on 220,000 pages of evidence gathered over an eight-year trial that included more than 100 technical reports from field inspections documenting the company’s policy of deliberately dumping toxic waste onto the ancestral lands of the indigenous groups, leading to the poisoning of waterways and causing a humanitarian catastrophe referred to as the “Amazon Chernobyl” by locals.
In Chevron’s retaliatory civil case before Kaplan the company alleged that the Ecuador judgment was the product of a “racketeering” scheme in violation of the RICO statute. Yet Kaplan barred any consideration of the voluminous scientific and documentary evidence against Chevron relied on by Ecuador’s courts to find the company liable, essentially making the exercise a one-sided proceeding that only considered Chevron’s “evidence” and not that of the villagers.
Kaplan also took stops to foreclose scrutiny of his handling of the case, refusing to seat a jury of impartial fact finders. The judge made bizarre comments from the bench, calling the Ecuadorian indigenous villagers the “so-called plaintiffs” and saying their case amounted to nothing more than “mud wrestling” – comments interpreted by the villagers as outright racist that they said were far more apt to describe Kaplan’s own proceeding. The villagers described the experience before Kaplan as a “mockery of justice”.
Although Chevron had insisted the trial over its environmental practices take place in Ecuador and had accepted jurisdiction in the country, the company refused to pay the judgment when it lost in 2011 and instead filed the retaliatory “racketeering” lawsuit. Chevron steered that case to Kaplan’s New York courtroom after the judge had made negative comments about the Ecuadorians in preliminary discovery lawsuits designed by the oil giant to obtain documents from those who had worked on behalf of the affected communities, including Donziger, U.S. human rights lawyer Aaron Page, several Ecuadorian lawyers and community leaders, environmental groups, bloggers, academics, and a filmmaker who made a documentary about the case.
Many lawyers who appeared for the villagers and their counsel in the “racketeering” matter, including prominent defense counsel John Keker, called the Kaplan proceeding a “Dickensian farce” that was rigged in favor of Chevron. Chevron illegally paid $2 million to its main witness, Alberto Guerra, who later admitted lying about key evidence that Kaplan relied on for his findings. (For more on Guerra’s lies and perjury, see this brief submitted to the Supreme Court, this blog by Earth Rights International, and this article from VICE News.)
In their submission, known as a “friend of the court” or amicus brief, the 19 law scholars request that the High Court reverse the Kaplan ruling on grounds that it constitutes a “blatant breach” of international comity, a bedrock principle under international law that requires nations to respect the court rulings of other countries. If Chevron wanted to contest a foreign court decision, the proper venue to do so under international law would be in places such as Canada and Brazil where the villagers have gone to enforce their judgment against Chevron’s assets, the scholars explained.
By returning to its home country to collaterally attack the Ecuador judgment after it lost the case, Chevron – assisted by Judge Kaplan — violated international law by interfering with the ability of Ecuador’s judiciary to have its judgments enforced in other countries against scofflaw debtors who lose cases and refuse to pay up, as Chevron did, according to the law experts. It also puts the United States in violation of international law, the scholars argued in their brief.
“The worldwide relief ordered by the lower court runs counter to customary international law that has for centuries prohibited a state from intervening in the domestic affairs of another state,” the scholars wrote in reference to the Kaplan decision, which also purports to bar the Ecuadorians from collecting on their judgment anywhere in the world. The courts in Canada and Brazil already have rejected Kaplan’s decision and are proceeding with enforcement actions against the oil company.
“This sort of intrusion into the international relationship between Ecuador and other states puts the United States in violation of a key international obligations because each state is permitted to decide freely whether a foreign judgment should be recognized and enforced and the consequences that flow from such a determination,” the brief added.
During the RICO case, Judge Kaplan held investments in Chevron that he never disclosed despite multiple calls for his removal for being biased in favor of the company. Relying on the testimony of a sole witness produced by Chevron who was an avowed political opponent of the government, Kaplan also purported to “rule” that Ecuador’s entire judicial branch was incapable of producing valid court judgments – again, something that had never happened before in the history of U.S. jurisprudence in relation to a U.S. ally and democratic nation.
The Kaplan decision fits with Chevron’s strategy in the case as proven by its own internal documents, which was to delay the proceedings and to “demonize” the lawyers for the villagers to distract attention from its own wrongdoing. When it was clear that evidence was mounting against it in the Ecuador trial, Chevron officials threatened 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,” Charles James, Chevron’s General Counsel, said in 2009.
The part of the Kaplan ruling purporting to dictate to all of the world’s courts how they should rule on enforcement of the Ecuador judgment is not only unprecedented in the history of the United States but has never been attempted by any court in the world, according to the scholars. Courts only sit in judgment of a foreign court proceeding when the winner of a lawsuit comes to enforce a judgment against the loser’s assets, not when the loser (in this case Chevron) seeks an affirmative judgment that amounts to an advisory opinion used largely for public relations purposes.
“The [Kaplan] judgment disrespects independent decisions of the court’s of other sovereigns by … claiming an exclusive right to capture any and all property awarded to the Ecuadorian judgment debtors by the courts of other countries,” the brief added. It called such a move a “blatant breach” of international comity by the United States.
“Absent correction from this Court, parties the world over will be encouraged to engage in a game of forum shopping – picking and choosing venues to attack judgments unbounded by any attempt by opposing parties to enforce such judgments,” the scholars wrote. “Courts will routinely be called upon to put the judicial process of other nations on trial, undermining sovereign relations.”
The scholars also note that the decisions by Kaplan and a federal appellate court affirming his findings will produce “far-reaching and unanticipated effects” that “will be widespread and overwhelmingly negative.”
Among those signing the brief were Donald K. Anton, an international law professor at Griffith University in Brisbane, Australia; Professor Cinnamon P. Carlarne, a professor of law at Ohio State University; Linda A. Malone, a professor of at William & Mary Law School in Williamsburg, Virginia; and Dr. Belen Olmos Giupponi, professor of international law at Liverpool Hope University in Liverpool, United Kingdom.
Also signing were Timo Koivurova, a professor of law at the University of Lapland in Finland; Gudmunder Alfredsson, professor of international law at the University of Akureyri in Iceland; Ved P. Nanda, a professor at the University of Denver Sturm College of Law; and Professor Penelope E. Mathew, the Dean of the law school at Griffith University in Brisbane. (A complete list of the professors and their affiliations can be found in Appendix A of the brief.)
Given the enormous stakes for international law involved in the Kaplan decision, the scholars said it was “especially imperative” that the U.S. Supreme Court grant review. Each year, the court only agrees to hear roughly 75 cases out of thousands of requests. (For other key legal reasons why the Supreme Court should review the Kaplan decision, including those related to Chevron’s abuse of the RICO statute, see this brief by Donziger’s counsel Deepak Gupta.)
Chevron’s environmental catastrophe in Ecuador has been extensively documented by numerous independent journalists, in this photo essay, and by Ecuador’s Supreme Court in this unanimous 222-page decision affirming the factual findings against Chevron. For a short summary of the overwhelming evidence against Chevron as found by the courts of Ecuador, see here.
For officials at the environmental groups who are backing the villagers, the briefs by the law experts and civil society groups present a major challenge for the Supreme Court.
“Our own Supreme Court has clear evidence that an American oil company fabricated evidence to try to corrupt a valid foreign court judgment that held it accountable for human rights abuses,” said Paul Paz y Miño, Associate Director of Amazon Watch. “Now it has clear evidence the Kaplan decision amounts to a massive violation of international law that potentially implicates the entire United States government in illegal conduct.
“The issue is whether the Supreme Court will step in and correct this outrage, or let Judge Kaplan get away with manipulating evidence to protect the interests of an American oil company that is literally killing off indigenous groups with its reckless environmental practices.
“The Supreme Court must ensure that our judicial system is not manipulated by corporate polluters like Chevron that are willing to steamroll international law to intimidate victims and allies alike,” Paz y Miño added.
Luis Yanza, a Goldman Prize winner and Ecuador community leader, said the affected villagers were “most appreciative” of the legal brief of the law scholars.
“While U.S. courts to hear this matter have consistently turned their backs on the people of Ecuador, when a gigantic company like Chevron shows up they do all they can to help even when they the company fakes evidence and bribes witnesses,” said Yanza.
“While there is nothing a U.S. court can do to stop our enforcement actions to seize Chevron’s assets around the world, we believe this is an important test case that will say a lot about the degree of integrity of the U.S. Supreme Court. The case will determine whether the United States judiciary can adhere to the rule of law even when it applies to little people like us who live in faraway lands.”