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A Remarkable Court Opinion in Chevron Case



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Chevron, which some years back was presented with a multi-billion-dollar judgment related to pollution claims in Ecuador, has been engaged in a years-long battle against a coalition of lawyers, environmental groups, and activists, and its defense has been an interesting one: Not only has Chevron rejected the specific claims against it, it has maintained that the case is the result of a criminal conspiracy involving those same lawyers and environmentalists, corrupt judges, bribery, and more. The company’s general counsel, Hewitt Pate, said today: “The case against Chevron was the result of fraud, bribery, and other crimes, and its aim was extortion.” 

The story might have struck many as too implausible even for a B movie, but a U.S. district court today issued a remarkable opinion confirming that the judgment against Chevron is indeed the result of fraud. (The complete, 500-page opinion is here.) District Judge Lewis Kaplan writes: 

This case is extraordinary. The facts are many and sometimes complex. They include things that normally come only out of Hollywood — coded emails among [lead plantiffs' attorney Steven] Donziger and his colleagues describing their private interactions with and machinations directed at judges and a court appointed expert, their payments to a supposedly neutral expert out of a secret account, a lawyer who invited a film crew to innumerable private strategy meetings and even to ex parte meetings with judges, an Ecuadorian judge who claims to have written the multibillion dollar decision but who was so inexperienced and uncomfortable with civil cases that he had someone else (a former judge who had been removed from the bench) draft some civil decisions for him, an 18-year old typist who supposedly did Internet research in American, English, and French law for the same judge, who knew only Spanish, and much more. 

The questionable conduct ranges from the spectacular to the banal: There were bribed judges, to be sure, but there were also articles in The Huffington Post and Politico authored by former Andrew Cuomo and DNC aide Karen Hinton, who, according to court documents, as a public-relations consultant had attempted to negotiate for herself a success fee” of “at least 5 percent” of fees related to settlement of the case, along with a $10,000-a-month retainer and expenses. Writing in Politico, Hinton asked: “I do advocacy work. So why am I accused of being part of a criminal conspiracy? . . . Chevron has charged that the Ecuadorian ‘conspirators’ and their ‘co-conspirators,’ like me, lied, manufactured evidence about the contamination, and committed fraud.” 

According to Judge Kaplan’s opinion, that’s about right.

What’s notable here is that Chevron’s complaint is under the RICO law, meaning that it implies the existence of an ongoing criminal organization. What we have here, if the U.S. District Court for the Southern District of New York is correct, is the new face of organized crime, and one of the most spectacular attempts at extortion in recorded history.

I’ve been following the case for a while and will have more to say when I’ve gone through the documents, but the decision is a very bad one for everybody who had a part in the case — from prestigious law firms to environmental groups – especially those with a financial interest in its outcome. Setting aside the legal reasoning and looking only at the findings of fact in the case, a great many reputations will need reconsidering. 

In the interest of full disclosure, I note that Chevron has occasionally advertised in National Review, and has in the past donated to the National Review Institute.

 



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