Chevron Corp. v. Donziger
| Decision Date | 04 March 2014 |
| Docket Number | No. 11 Civ. 0691 LAK.,11 Civ. 0691 LAK. |
| Citation | 974 F.Supp.2d 362 |
| Parties | CHEVRON CORP. v. DONZIGER. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HEREKAPLAN.
Consistent with its statement that it would not “refer at all” to Chevron's specific allegations “of fraud and corruption of plaintiffs, counsel and representatives,” the intermediate appellate court failed largely to address the question whether these commonalities supported Chevron's claim of misconduct.
3. The Appellate Clarification Order
The LAPs sought clarification of the appellate court's decision.1167 They referred to the appellate court's statement that it “ha[d] no competence to rule on” Chevron's fraud allegations that were “pending resolution before” this Court 1168 and asked that “the [appellate] Division clarify and state that in fact it ha[d] analyzed Chevron's accusations, and that it ha[d] not found any fraud in the activities of the plaintiffs or their attorneys.” 1169
The appellate court issued its clarification order on January 13, 2012. 1170 It stated that, while it did “not find evidence of ‘fraud,’ ” it was “stay[ing] out of these [fraud] accusations, preserving the parties' rights to present formal complaint to the Ecuadorian criminal authorities or to continue the course of the actions that have been filed in the United States of America.” 1171 It noted that “[t]his was a determining factor for the [Appellate] Division's considerations in the judgment that is being clarified, since it is obvious that it was not its responsibility to hear and resolve proceedings that correspond to another ju
risdiction....” 1172
Nonetheless, the court stated conclusorily that “all of the samples, documents, reports, testimonies, interviews, transcripts and minutes, referred to in the judgment, are found in the record without the defendant identifying any that is not—the defendant's motions simply show disagreement with the reasoning, the interpretation and the value given to the evidence, but they do not identify correctly legal evidence that is in the record.” 1173 But the clarification order—like the underlying appellate order—did not address any of Chevron's specific ghostwriting claims. Nor did it identify where in the record it had located the documents it claimed were there and—as noted previously—its statements concerning what it allegedly found in the record may not be considered for their truth. It posited instead that “[i]f there had been any ‘secret assistance,’ the presumed concordance between the plaintiffs' internal documentation, and the text of the judgment would not be limited to a fairly simple interpretation of evidence that is contained in the record.” 1174
B. The National Court of Justice Affirms the Judgment in All But One Respect
Chevron sought review in the Ecuadorian National Court of Justice on January 20, 2012.1175 The National Court of Justice is a court of cassation. It reviews only the legal arguments and does not re-examine the facts.
Despite its limited scope of review, Chevron made a plethora of arguments—both legal and factual—to the National Court. Most relevant, however, were its contentions that the trial court proceedings should have been “nullified” because, inter alia, the LAPs had submitted fraudulent reports by Dr. Calmbacher, Cabrera had been appointed illegally and had illegally carried out his duties, and the LAPs had ghostwritten the Judgment.1176
The National Court issued its opinion affirming in large part the appellate court's decision on November 12, 2013, while trial in this case was underway. 1177 It noted that “the cassation appeal is an extraordinary appeal granted to the losing party so that the Cassation Court may annul not every unfair judgment, but only those in which their own specific unfairness has been proved to have been founded on a wrongful interpretation of the law.” 1178
With respect to Chevron's allegations concerning Calmbacher and Cabrera, the National Court noted that Chevron had not “mentioned which legal rule ha[d] been supposedly infringed” or “which procedural rules have rendered the proceeding absolutely null” and stated that it had concluded that the cassation court therefore was unable to pass on them.1179 It accepted the trial court's statement that it had not relied on the Cabrera Report.1180 The National Court “concluded that ... [t]he court of appeals ha[d] adequately addressed the requests of the defendant with respect to the report of Mr. Cabrera and
has properly weighed the evidence in accordance with the rules of the sound judgment, within which it has considered that the aforementioned report was not taken in consideration by the trial judge ....” 1181 The National Court therefore “discard[ed] the [Cabrera] allegation inasmuch as it is shown that there has been a correct weighing of the evidence in accordance with legal standards ...” 1182 It pointed out, however, that it had not reviewed the record before the trial court as “one cannot attempt to re-evaluate the evidence through a cassation appeal....” 1183
The National Court stated also that Chevron's ghostwriting allegations were inappropriate for cassation review.1184 The court wrote:
1185
The National Court affirmed the appellate court in all but one respect. It “quashed” the punitive damages award “since punitive damages are not contemplated under Ecuadorian law and public apologies are not admissible nor, therefore, is any award for that concept.” 1186 It therefore cut the LAPs' damages award to $8.646 billion.
XIII. The Pressure Campaign ContinuesA. The Invictus Strategy Deployed—Attempts to Enforce the Lago Agrio Judgment
As noted, the Invictus Memo set out a plan to enforce the Judgment “quickly, if not immediately, on multiple enforcement fronts—in the United States and abroad.” 1187 It laid out also a so-called “keystone nation” strategy:
1188
In pursuit of this strategy, the LAPs currently are seeking enforcement of the Judgment against subsidiaries of Chevron in Argentina, 1189 Brazil, 1190 and Canada.1191 The Court finds that they intend to do so in the United States when they conclude that it is tactically advantageous to do so.1192
The LAPs are enforcing the Judgment in Ecuador despite that Chevron never has operated in the country and has no subsidiaries there. As noted, Invictus foreshadowed the LAPs' plan of seeking “attachment of Chevron's assets prior to successful recognition of the Ecuadorian
judgment.” 1193 It noted that “attachment would undoubtedly compound the pressure already placed on Chevron vis a vis an international enforcement campaign, and force Chevron to focus its resources on the proceedings initiated by the Plaintiffs, rather than its sideshows.” 1194 The LAPs recently have attempted to employ this strategy in Ecuador.
A few months after the intermediate appellate court affirmed the Judgment, the Provincial Court of Sucumbíos issued orders attaching Chevron's assets and the assets of its subsidiaries worldwide. In furtherance of enforcement of the Judgment, it attached Chevron's intellectual property rights in Ecuador, funds going into or leaving Ecuador to Chevron's bank accounts abroad, and a $96 million arbitration award issued against the Republic of Ecuador (“Embargo Order”).1195 More will be said on this below, but it suffices now to note only that it is another important aspect of the LAPs' multi-pronged enforcement plan.
B. The Purpose of All of These Efforts
Donziger's and the LAPs' purposes in pursuing the expansive media campaign previously discussed, in their attempts to instigate the criminal prosecution of Chevron lawyers, in their efforts to precipitate disinvestments in Chevron stock, and in their overtures to government officials and agencies to investigate Chevron and in related activities, always have included driving Chevron to the settlement table.
On October 6, 2007, Donziger confided to his personal notebook the following:
1196
Later that month, Donziger, on the eve of a mediation with settlement, wrote confidentially to another of his hired PR people that “[w]e need to get more press and increase the pressure b/w now and then, to get the price up.” 1197
In August 2009, Donziger sent a new prospective PR firm a memorandum outlining his ideas for their efforts. It began by stating that the “primary...
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