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May 13th, 2011 1:15 am
Chevron/Ecuador Judge Smacks Down Lawyers

Yesterday I blogged about new developments in the Ecuadorian environmental case against California-based Chevron Corp., and said I would have a second part of the blog ready today. Well, here it is.

Earlier this week, U.S. District Judge Lewis Kaplan, who has been giving fits to the plaintiffs’ lawyers who have so, uh, creatively pursued this case for years, refused plaintiffs’ demands that he recuse himself. What was particularly devastating in his answer was the fact that the Second Circuit Court of Appeals had praised to high heaven his handling of the case:

“[I]n light of the complexity of this case and the urgency of its adjudication, we wish to note the exemplary manner in which the able District Judge has discharged his duties,” the appellate court stated. “There is no question but that all concerned, not least this Court, are well served by the careful and comprehensive analysis which is evident repeatedly throughout the many memoranda and orders of the District Court, many of which were produced with rapidity in the context of the District Court’s daunting schedule in this and other important cases.”

That’s about as effusive an endorsement from a higher court as I’ve ever seen. It’s also, effectively, a total smack-down (in advance) of the plaintiffs’ recusal motion.


Kaplan also denied ever having “urged” Chevron to file racketeering suit.
     The Ecuadoreans contend that Kaplan made the suggestion by asking during a hearing: “Now, do the phrases Hobbs Act, extortion, RICO, have any bearing?”
     But Kaplan said he posed the question after Chevron made its accusations known.
     “Chevron had laid out its RICO, Hobbs Act and extortion claims well before the motion to quash was argued and well before the Court even posed its question,” Kaplan wrote. “In short, the chronology is flatly inconsistent with the LAP Representatives’ contention.”

What has gone unsaid in all this is the irony (or hypocrisy) in the plaintiffs’ whining about supposed “bias” against them in U.S. courts, where the alleged bias involved no allegations of financial wrongdoing by the judge and no other conflict of interest — in other words, no real ethical conflict, but merely a glorified difference of opinion — while the plaintiffs’ lawyers have utterly belittled and denounced the importance of manifold evidence of actual ethical conflicts in the Ecuadorean courts that have been raking Chevron over the coals.

(Sorry for such a long sentence.)

When one key judge was videotaped participating in what looked to all the world like a bribery scheme in favor of the plaintiffs, “The Washington D.C.-based Amazon Defense Coalition, which supports the plaintiffs, said in a statement on Tuesday that the video showed Nunez had resisted the attempts to bribe him.” Well, not exactly. Even the judicial system of Ecuador, panned internationally as being corrupt or unreliable, was forced to remove Judge Nunez from the case. Yes, internationally.  As in:

On Feb. 2, a German newspaper featured a lengthy report headlined “Ecuador emerges as hub for international crime.” This follows actions in recent years in which the U.S. State Department, the United Nations, the International Bar Association and six major American business organizations all have denounced Ecuador’s court system as unreliable or corrupt.on Feb. 2, a German newspaper featured a lengthy report headli major American business organizations all have denounced Ecuador’s court system as unreliable or corrupt.”

So we have an American judge with no direct conflict of interest and a record praised by the courts above him being blasted by the same outfits who are perfectly happy with a corrupt Ecuadorean system that they themselves have said is all about graft. Chevron has noted:

On film, Donziger declared, “the only language that I believe, this judge is gonna understand is one of pressure, intimidation and humiliation.  And that’s what we’re doin’ today.  We’re gonna let him know what time it is . . . .  We’re going to scare the judge, I think today.”  These tactics were employed because, according to Donziger, judges in Ecuador “make decisions based on who they fear the most, not based on what laws should dictate.”  When it was suggested to Donziger that no judge would rule against them because “[h]e’ll be killed,” Donziger replied that, though the judge might not actually be killed, “he thinks he will be…  Which is just as good.”

This is not, repeat not, just a question of one company fighting off a lawsuit. This is a question of American companies being badly abused by a foreign court system, at the urging of American lawyers about whom several judges have raised the specter that they have acted fraudulently. This should be a matter where the U.S. government, through the White House and State Department, should weigh in diplomatically to protect American interests. That they have not done so should be a mark of shame for the Obama administration.

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