Feb 8, 2019
Lies Help US Federal Judge Protect Chevron From $9.5 Billion Oil Judgment, Litigated in Canada
The Damage Award Would Cleanup Contamination in Amazon Rainforest, Which Has Killed & Injured Thousands of Ecuadorians Since the 1970s
All former U.S. presidents have told tall tales, but our current one tells at least one lie a day on Twitter. Not as noticeable, though, in another branch of government are federal judges who tell, repeat or condone lies in their courtrooms. They are rarely criticized and, too often, courtroom lies are hidden and harmful to both plaintiffs and defendants.
One flagrant example is Senior U.S. District Judge Lewis Kaplan in the Southern District of New York, the federal trial bench in Manhattan. Based on lies, Kaplan is helping Chevron, a U.S. oil giant avoid litigation outside his jurisdiction and authority in another country close by — Canada.
Here’s why: In a U.S. civil case without a jury, Kaplan in 2014 found 47 Ecuadorian Indigenous persons and impoverished farmers, as well as some of their lawyers, “guilty” of arranging a bribe to an Ecuadorian judge and thereby defrauding Chevron. See “Blame the Victims” for more information.
Kaplan ruled against the Ecuadorians to prevent Chevron from having to abide by the judgment issued by four layers of courts in Ecuador — including the country’s Constitutional Court — that awarded the Ecuadorians $9.5 billion in damages. The courts in the Ecuador venue, where Chevron insisted the trial be held, found the oil giant was responsible (via the actions of its predecessor company Texaco) for massive contamination in the Amazon rainforest. Texaco fathered one of the world’s largest environmental disasters that since the early 1970s has killed and injured tens of thousands of Ecuadorians, many of whom are Indigenous and live in the rainforest. This humanitarian catastrophe, known globally as the “Amazon Chernobyl,” continues to kill, disfigure and impair the poor today.
For example, in 2017 Rosa Moreno, a nurse who took care of cancer patients for 30 years in San Carlos, Ecuador, tragically passed away from the same oil-laced cancer. Studies and photos (See the “Evidence is Overwhelming”) of sick and dying Ecuadorians clearly show and prove the tragic impact Texaco’s demand for greater profits, during three decades of drilling, has had on the Ecuadorians’ land, their water, their health and their lives.
To my knowledge, Kaplan has never stepped foot in Ecuador to see the contamination. Nor has he allowed the facts about the disaster and its painful consequences to be presented in his court.
Instead, Kaplan has focused only on Chevron’s phony charges of bribery and fraud, allowing the California-based company to lie about Texaco’s contamination and strengthen its defense in Canada, where the Ecuadorians filed a lawsuit demanding Chevron pay the $9.5 billion judgment (Details follow below).
Kaplan isn’t alone. Joan Biskupic, a CNN legal analyst and Supreme Court biographer, has analyzed 5,000 judiciary complaints recently against federal judges about various issues over a ten-year period. The CNN team found that most of the judges’ complaints are not “deeply investigated,” “very few are disciplined” and, for many years, “not a single judge is sanctioned.”
Biskupic’s view is on target: “… the judiciary itself is hiding the depth of the problem of misconduct by judges…. The federal judiciary occupies a distinct place in American life that makes what happens there potentially more striking than in other spheres.” Her view provides disturbing insights into Kaplan’s rulings and behavior.
Part of Kaplan’s ruling purported to bar the Ecuadorians from seizing the $9.5 billion award in the U.S. As a result, the Ecuadorians have sought to enforce their judgment against Chevron’s assets in Canada, a rule-of-law country where judges are considered neutral and open to issues related to Indigenous rights and the environment. (As the evidence mounted against it, Chevron sold off all of its assets in Ecuador prior to losing the case in
Ecuador.)
Chevron has filed dozens of lawsuits throughout the country and abroad to stop the Ecuadorians during the 26 years of litigation. Filing yet another outcry for help in Kaplan’s court could provide a way to end the lawsuit in Canada. How? Stop the fundraising.
The Canadian lawyers for the Ecuadorians need their legal fees paid. Their clients, the Ecuadorians, have no money. Legal funds to fight Chevron have been raised largely by an American human rights lawyer named Steven Donziger, one of the lawyers found “guilty” by Kaplan of civil fraud. Donziger disputes the lies (also called findings), which have been rejected in whole by 16 appellate judges in Ecuador and in part by 12 appellate judges in Canada who have been supportive of Indigenous peoples’ Constitutional and international human rights, including the Supreme Courts of both countries.
Chevron seeks to prevent Donziger from “profiting” from fundraising for the Canada lawsuit and demands that he give Chevron lawyers at Gibson Dunn his laptop, cellphone, passwords, and documents to look for evidence related to payments from his fundraising. This demand is coming from Chevron’s highest-ranking officials and their lawyers who make more money in a day than what Donziger makes in a good month.
In truth, though, Chevron’s real purpose is designed to end all court fights. The goal of the company is to 1) dry up the Canada legal budget; 2) threaten supporters, including myself, with subpoenas and depositions to scare us away from aiding the Ecuadorians; 3) prevent any negative media coverage about the oil giant; and 4) ensure Chevron never pays a dime to the Ecuadorians, even though the company has paid $2 billion, if not more, to over 2,000 lawyers who have represented Chevron, including Gibson Dunn, Holland and Knight, Jones Day, among many others. Gibson Dunn brought the bogus bribery and fraud charges and is heading the effort to kill the Canada case — just as Gibson Dunn did in Nicaragua and other countries where corporations hired Gibson Dunn lawyers to get them out of trouble.
Meanwhile, Chevron seeks to punish Donziger by stripping him, his wife, and child of all his past, present and future assets earned from his involvement with the case since its beginning in 1993.
Chevron cares less about Donziger’s money and much more about letting everyone, including any American, know that large corporations are above the law and should not be sued for damages, anywhere. Someone else will pay the price for the billions of gallons of toxins dumped onto Indigenous ancestral lands. In the Ecuador case — with cancer rates in the affected area off the charts — the Ecuadorians and their lawyers are being forced to fill this role.
Some supporters have made large investments in the legal case against Chevron to pay for the professional fees necessary to fight Chevron’s allegations and other retaliatory litigation the company has filed against the Ecuadorians abroad. I’ll repeat again, the Ecuadorians have no money. The only way they can defend themselves and force Chevron to pay the damage award is by seeking litigation investors who also happen to believe in their case. If the Ecuadorians ever collect their $9.5 billion damages award from Chevron (now $12 billion with interest), some of these investors will receive payments for the money they invested to fight Chevron.
Chevron, of course, has plenty of money to pay for lawyers and that other “L” word — lies.
While the truth about the contamination has been affirmed by courts the world over, it has been ignored in Kaplan’s courtroom where Chevron’s lies reside in a very welcoming environment.
Here are a few:
· Kaplan accepts the Chevron argument that Texaco “cleaned” a portion of the contamination. That’s a lie. In truth, Texaco covered a small percentage of the 1,000 or more gigantic, unlined oil waste pits with dirt to hide toxic crude and chemicals (Watch this video). Texaco stored its killer sludge in these huge pits, most of which continue to pollute today. During rainstorms, the deadly chemicals and oil often flow out of the pits through steel pipes into streams and rivers used by local Indigenous peoples for their drinking water and to cook, bathe and swim in.
· Kaplan also accepts the Chevron argument that the Government of Ecuador (via its national oil company Petroecuador) was Texaco’s partner and is therefore responsible for the damage. That’s another lie. In truth, Texaco was the mastermind behind the first oil exploration in Ecuador five decades ago. Texaco also was the exclusive operator of the oil fields for the majority of time it drilled in Ecuador and saved money by ignoring safety and environmental regulations in use right then and there in the company’s homeland, the United States.
· Kaplan “found” bribery and fraud based largely on admittedly false testimony by Chevron’s star witness, Alberto Guerra. Guerra, an admittedly corrupt former Ecuadorian judge booted from the bench for taking bribes, later confessed under oath to lying in Kaplan’s court about several key facts. Chevron has paid Guerra at least $2 million and given him and his family a slew of benefits, including moving them from Ecuador to the U.S., getting them legal immigration status and a monthly stipend.
· From the bench, Kaplan also made insulting and arrogant jokes (pages 9–15) about Ecuador’s court system that reflected his firm belief in the inherent superiority of the American empire. One was to belittle Ecuador’s courts by saying if the “High Court of London” (pages 9–15) had ruled on the damage award, he would accept it; otherwise, not a chance for Ecuador’s courts.
· Also from the bench, Kaplan said that if Chevron had to pay the Ecuadorians billions of dollars for a cleanup, the oil company would lose money and have to shut down its gas stations. “I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there.” Note: The U.K. oil company, BP, paid over $60 billion for accidental damages related to the Deepwater Horizon disaster. BP never closed a gas station and still earns loads of money in the U.S. after paying the damage awards for a much smaller accident that BP cleaned immediately. Texaco’s contamination was intentional, much larger than BP’s accident and it continues to pollute.
· Chevron is using these lies and others to destroy the case. Part of the company’s plan has been to demonize Donziger as a warning signal to any lawyer, even thinking about working on the case or any supporter interested in providing funds to pay expenses.
After his 2014 decision, Kaplan expressly granted Donziger the right to represent his clients, the Ecuadorians, and receive modest payment for the work. While Chevron’s lawyers bill more than $1,200 per hour, Donziger makes a comparative pittance and during the 26 years of litigation has sacrificed enormously to move the case forward for almost three decades. Supporters have stood beside the Ecuadorians in Canada and other places to help them obtain the damages they are due and to help them repair their lives. All of their actions have been completely legal and based on Constitutional rights Americans enjoy and support — including talking to the news media, circulating press releases critical of Chevron, educating government officials, raising money, spending money, and investing money. Chevron’s attempt at core is a SLAPP-style campaign to silence its critics in violation of the Constitution. The company hopes to win by lying and intimidating what it already has lost on the merits.
Few in the U.S. media now care enough to cover the litigation abuse that Chevron continues to inflict with Kaplan’s help. I can say as the media consultant for the Ecuadorians for the last several years that the reluctance is largely the result of Chevron’s pressure. Media such as Newsweek, Vanity Fair, 60 Minutes, and VICE have suffered from the legal threats Chevron’s lawyers have thrown at them for coverage critical of both Texaco’s pollution and Chevron’s lies to limit its exposure.
U.S. media is firmly focused on Trump and his lies. They don’t have much time for Chevron’s lies.
The Government of Ecuador could do more cleanup but hasn’t, maintaining its position that only Chevron should pay. Poor and brown Ecuadorians have little leverage with their government. In fact, their relationship is very similar to the one between people of color here in the U.S. and their government, overseen by a lying and racist President.
While Trump lies about his fight to build an “emergency” wall between the United States and the rest of the Americas to “protect” legal U.S. citizens from Latino “criminals,” a judicial wall built by Kaplan is ensuring that Texaco/Chevron’s contamination continues to kill and injure Indigenous Ecuadorians and poor villagers. Like Trump, Kaplan is not concerned about the pain and suffering of Latinos. He’s looking to protect not just Chevron but also other U.S. corporations whose lawyers can use the source of his racketeering (RICO) ruling against the Ecuadorians that once rightly found the Mafia guilty of crimes but today can wrongly take advantage of poor people from any country in a U.S. court.
In a sketch drawn by an artist working for our nation’s first courthouse, also known as the “Mother Court,” where Kaplan hangs his robe, he exudes a commanding presence staring down at a witness, the Ecuadorian indigenous leader Humberto Piaguaje, widely respected in Ecuador. The sketch is positioned prominently in the well-known Pearl Street Courthouse but wrongly compliments Kaplan for a decision based on false evidence, proven to be lies. The hanging of the sketch essentially glorifies a U.S. judge who has become an accomplice to an oil company’s lies.
