In the flood of news coverage after Ecuadorian Judge Nicolas Zambrano announced an $8.6 billion damage award against Chevron, reporters sought out ostensibly independent experts to comment on the award. We laughed upon reading one such comment in an AP report:
A professor at Loyola Law School in Los Angeles who has studied the case, Georgene Vairo, said the comparatively small judgment is a signal from Ecuador that it is willing to negotiate a smaller fine.
“This is way low compared with what everyone was expecting to happen,” she said. “They are trying to show the world they are reasonable people. This is Ecuador coming to the table.”
Oh, please. The U.S. trial lawyers and their allies in Ecuador are on the record numerous times talking about their strategy to make those most outrageous, exorbitant claim for damages — $113 billion! — so they can pretend anything less is a sign of judicial reason and compromise.
Here’s an example, yet another damning revelation from outtakes from the documentary-style movie on the litigation, “Crude.”
As the natural gas industry group Energy in Depth reports, “At a Capitol Hill press conference today, a small group of critics opposed to the responsible development of job-creating American oil and natural gas – including U.S. Rep. Maurice Hinchey (D-NY), actor Mark Ruffalo, and GasLand filmmaker Josh Fox – are poised to renew calls for a one-size-fits-all, federal takeover of hydraulic fracturing, a 60 year-old energy stimulation technology used to enhance 90 percent of the nation’s onshore wells.”
It’s clear that this event, scripted by a Hollywood publicist one week before the Academy Awards, is focused on achieving staged drama and inside-the-beltway chatter about a ‘documentary’ that’s been debunked in its entirety.
Refusing to engage in a fact and science-based dialogue, New York City stage director Josh Fox, his Hollywood friends, and a few congressmen are more concerned with stunts and scare tactics than working to address critical energy security issues. The American people deserve and expect nothing less than a serious discussion and common sense solutions regarding national energy policy, not tired, misleading talking points from Hollywood elite who’ve never been on a drilling rig.
American natural gas and oil production must absolutely be done safely and in way that protects our environment and water. And for more than 60 years, state governments have ably and effectively regulated hydraulic fracturing. Energy-producing states, who understand their unique geology best, have inspectors and expert scientists in place to ensure that fracturing is done safely not impact groundwater.
The full statement is here. EID offers debunk the bunk-filled film, Gasland, at the group’s website here.
But there’s another great performance in the film, a cameo appearance that bears close attention. In segments never shown to the public, Alexis Mera, Ecuador’s Secretary of Judicial Affairs and a legal advisor to President Rafael Correa, strategizes with the plaintiffs’ legal team about how best to apply political pressure to a public prosecutor and even revoke an Ecuadorian law so the lawsuit gains a modicum of legitimacy.
Mera’s comments — and other revelations from the outtakes — demonstrate that the government of Ecuador has been actively aiding the U.S. trial lawyers’ plans to extort billions out of a U.S.-based company. The scheming by top government officials, as well as comments by Correa himself, reinforce the Ecuadorian government’s anti-American policies and contempt for international law.
On March 29, 2007, Mera met in his offices with the legal team of the so-called Lago Agrio plaintiffs, including Pablo Fajardo, Alejandro Ponce Villacis, and Julio Prietro, as well as the activist and public face of the anti-Chevron awsuit, Luis Yanza. In one outtake, Mera says, “The problem, I see, is what to do and how we can help each other.”
The video, available here, continues with Mera and the team discussing the Public Prosecutor’s office, which the plaintiffs’ lawyers are demanding should bring criminal charges against two Chevron attorneys in Ecuador. The plaintiffs want the charges brought to introduce personal risk into the portfolio of pressure tactics; Chevron might be more inclined to settle if its employees could be sent to jail.
The top justice official advises, “You have to take the people from the Orient [province] there, hold a demonstration. The people — that’s how this country works. Close Republica Street.”
Then there’s this, Mera’s clear recognition that his discussions with the plaintiffs are improper.
Mera and the plaintiffs’ team are talking about a “nullity suit” to revoke the Ecuadorian government’s previous sign-off on Texaco’s clean-up of its Ecuadorian oil operations. (Chevron acquired Texaco in 2001.) As they’re discussing these legal issues, Mera seems to realize the camera is on.
MERA: Why are they filming? Why are they filming? That seems to me to be completely improper. Forgive me for the way I’m saying it.
Ever since Shopfloor began blogging about the Ecuador-based litigation against Chevron in May 2007, we’ve argued that the lawsuit was a blatant shakedown by U.S. trial lawyers. In claiming Chevron owed $27 billlion — and then $113 billion — for environmental damage from Texaco’s oil drilling in the Amazon, the U.S. attorneys and Lago Agrio plaintiffs in Ecuador were really trying to pressure Chevron (which had bought Texaco in 2001) into a huge settlement. The bigger the settlement, the bigger the check for the U.S. lawyers being paid on a contingency basis.
Their preposterous claims relied not on facts or the law, but rather a multifaceted and ugly public relations and political campaign. At work was a combine of U.S. trial lawyers, environmental activists and anti-corporate bloggers, magnifying their accusations through a sympathetic mainstream media. The shakedown campaign recorded several PR victories, including a “60 Minutes” hit piece against Chevron and most notably a full-length, overwhelmingly pro-plaintiffs’ film, “Crude,” by well-known documentarian Joe Berlinger.
In Ecuador the plaintiffs’ team manipulated the court system and made common cause with the leftist, anti-American regime of President Rafael Correa. (More on that in a later post.)
The response to our arguments? Chevron lies, America exploits the Third World, Ecuadorians are dying and you’re an inhumane corporate shill.
Now, thanks to outtakes from “Crude” that Chevron successfully obtained through the U.S. courts, the trial lawyer/activist/media combine can no longer pretend any sort of moral high ground. Footage reveals Steven Donziger, the lead U.S. attorney who has directed the anti-Chevron campaign in Ecuador and the United States, to be a cynical, arrogant and foul-mouthed commentator. And, unfortunately for the plaintiffs’ case, Donziger is remarkably frank.
Take for example, this video below. At a June 6, 2007, meeting Donziger outlined the plaintiffs’ strategy to intimidate the Ecuadorian courts through the show of brute force. [Warning: Language]
Since we last wrote about the $113 billion shakedown lawsuit against Chevron for environmental damage in Ecuador’s Amazon, momentous developments have occurred. Via court filings and media reports we have learned:
Kohn, Swift and Graf, the Philadelphia law firm that bankrolled the lawsuit has pulled the plug on its financial support, largely because of the hubris and unethical behavior of the lead lawyer orchestrating the anti-Chevron campaign, Steven Donziger.
Donziger has declared he is lowering his profile in the case, and Patton Boggs has signed on to represent the Ecuadorian plaintiffs, apparently believing it can patch up a sinking ship. (Wall Street Journal, “Chevron Forces Legal Change.”)
Some of the Ecuadorian plaintiffs may be fictional. No, not just their claims, their actual existence may be an invention.
SAN RAMON, Calif., Dec 20, 2010 (BUSINESS WIRE) — Chevron Corporation (NYSE: CVX)today submitted expert analysis from a leading forensic specialist demonstrating that many of the signatures on the document purporting to authorize the lawsuit against Chevron in Lago Agrio, Ecuador, were forged. According to Chevron’s filing, this newly uncovered evidence of forgery and fraud makes clear that the lawsuit has been tainted with corruption from the very beginning and must be terminated….
“The Ecuadorian authorities cannot continue to ignore the mounting evidence of fraud in the Lago Agrio litigation without violating their duties under the Ecuadorian constitution and international law,” stated R. Hewitt Pate, Chevron vice president and general counsel. “We intend to seek full redress against the harm that has been done in the name of the Ecuadorian plaintiffs and to hold accountable all of those who have knowingly participated in this unlawful scheme.”
The forensic expert’s analysis and Chevron’s motion to nullify the Ecuadorian lawsuit are available at: http://scr.bi/faTsoS.
In 'Crude' movie, Joe Kohn (left) looks askance at Steven Donziger
Daniel Fisher at Forbes.com has done the best job of reporting on recent developments gleaned from court documents, including the Philadelphia law firm’s renunciation of Donziger. Joe Kohn, the partner most associated with the suit, wrote the plaintiffs in August about the manipulation of a supposedly independent court expert’s report claiming $27 billion in damages. As Fisher reports in his column, “Chevron Ecuador Case A Shambles, Former Backer Says,” Kohn fumed:
We now find out that there may have been extensive, systematic contacts, orchestrated by Donziger, and with your participation and agreement, which have threatened the entire case. And, of course, we find out about it in part as a result of the utter stupidity, arrogance and conceit of inviting a film to be made documenting this improper conduct.
U.S. District Judge Lewis Kaplan has issued his full opinion explaining his earlier order that Steven Donziger, the U.S. trial lawyer, answer the questions of Chevron’s attorneys about his orchestration of the $113 billion lawsuit against the company in Ecuador.
Released Friday in the Southern District of New York, Kaplan’s order denies Donziger’s claims that, among other arguments, being forced to submit to depositions would violate attorney-client privilege. But Donziger isn’t admitted to practice law in Ecuador where the litigation is taking place, and he does not play a counsel’s role. Judge Kaplan refers to Donziger as the “field general” of the anti-Chevron campaign.
Donziger is at the center of this controversy. While he is a member of the New York Bar and years ago worked on a predecessor to the Lago Agrio lawsuit that was brought in this Court, he is not qualified to practice law in Ecuador. He does not serve as litigation counsel there. He nevertheless has been extremely active in support of the Lago Agrio plaintiffs.
The evidence before this Court shows that Donziger has attempted to (1) intimidate the Ecuadorian judges, (2) obtain political support for the Ecuadorian lawsuit, (3) persuade the GOE to promote the interests of the Lago Agrio plaintiffs, (4) obtain favorable media coverage, (5) solicit the support of celebrities (including Daryl Hannah and Trudie Styler) and environmental groups, (6) procure and package “expert” testimony for use in Ecuador, (7) pressure Chevron to pay a large settlement, and (8) obtain a book deal. Among his efforts was his persuasion of Joseph Berlinger, a documentary film maker, to make a documentary about the Lago Agrio litigation from the plaintiffs’ point of view. That film, entitled Crude, purports to tell the story of the Lago Agrio litigation. It is no exaggeration to say that Donziger is the star of the film, much of which focuses on his words and activities.
And it’s the outtakes of “Crude” that document so much of the wrongdoing, in the process destroying any vestige of legal or moral standing the plaintiffs could claim in their suit against Chevron. (continue reading…)
Of all the outtakes from the documentary-style movie, “Crude,” now posted online by The Corporate Counsel (see below), we like Video 5.
Entitled “Smoke and mirrors and bulls—,” the video shows New York trial lawyer Steven Donziger at his most arrogant, commenting: “This is Ecuador. You can say whatever you want. At the end of the day there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.”
What an imperious Norte Americano, contemptuously dismissing Ecuador’s judiciary as just something to be manipulated. You would think Ecuador’s leaders would be offended at this trial lawyer imperialism, but the leftist government of President Rafael Correa has been cheering it on.
Congratulations to Corporate Counselfor being the first media outlet to post the videos of the outtakes from the documentary-style movie “Crude” that have revealed the trial lawyer/activist lawsuit against Chevron for environmental damage in Ecuador to at its core a multi-billion-dollar shakedown against the U.S. company.
The magazine’s sister publication, The American Lawyer, obtained copies of the outtakes from the U.S. District Court, Southern District of New York, after Judge Lewis Kaplan ordered their release to the public. Corporate Counsel has now posted the key videos with short summaries from Michael Goldhaber, the reporter who has provided the most thorough coverage of the court proceedings in New York.
In the final version of Crude — the 2009 Joel [sic] Berlinger documentary on the epic environmental suit brought by Amazon tribespeople against Chevron Corporation in Ecuador — lead U.S. plaintiffs’ attorney Steven Donziger remarks: “This is something you would never do in the United States, but Ecuador, you know, this is how the game is played, it’s dirty.”
If Donziger would say something so provocative for the final cut, reasoned Chevron’s lawyers at Gibson, Dunn & Crutcher, then just imagine how outrageous he must look in the extra footage.
Well, the public no longer needs to use its imagination.
As Goldhaber explains, Chevron views the first two outtakes (there are six total) as the most legally damning, showing the team of lawyers/activists orchestrating the supposedly independent court-appointed expert’s damage assessment.
Video 1: “Plaintiffs’ lead Ecuadorian lawyer, Pablo Fajardo, gives a PowerPoint presentation to his team that envisions extensive coordination with the independent damages expert.” You mean the same Pablo Fajardo who won the ostensibly prestigious Goldman Environmental Prize in 2008?
Video 2: “The day after the PowerPoint presentation where the Ecuadorian plaintiffs laid out their plan to coordinate with the court-appointed expert, one of plaintiffs’ consultants suggests that it was ‘bizarre’ that the meeting included ‘perito,’ which means ‘[the] expert.’” That expert is Richard Cabrera, who recommended the $27 billion damage figure.
The PR front group in the lawsuit, the Amazon Defense Coalition, claims that ex parte contacts are common in Ecuador. Sure, and no one worries that one side in the lawsuit gets to write the expert’s report and pick the damage figures.
Corporate Counsel is, of course, a special-interest publication, reaching an audience of mostly business attorneys. Now it’s up to all the major media outlets that have covered the litigation against Chevron — The New York Timesand “60 Minutes” come mind — to follow-up and give these outtakes the attention they deserve. Thomson/Reuters also requested copies of the videos from the U.S. District Court, so there’s a powerful media distribution system available.
Thanks to a federal judge’s ruling, a New York attorney is going to have to answer questions about his scheming to manipulate the courts in Ecuador for advantate in the lawsuit claiming Chevron polluted the Amazon. The order by U.S. District Court Judge Lewis Kaplan delivers another hard blow against the multi-billion-dollar litigation targeting the company.
Thankfully, the U.S. judicial system is revealing the truth that the trial lawyers and wealth-redistributing activists sought to obscure and that the media failed to report. Aggressive lawyering by Chevron is proving more effective than the aggressive propagandizing by those trying to shake down the company.
In his Oct. 20 order, Judge Kaplan of the Southern District of New York ruled that Steven Donziger’s activities in Ecuador are not protected by attorney-client privilege. Donziger must respond to request for discovery from Chevron in the civil lawsuit (from the group known as the “Lago Agrio plaintiffs) and two Ecuadorian lawyers for Chevron who are being criminally prosecuted, Richard Reis and Rodrigo Perez.
Steven Donziger (left) and Joe Berlinger in happier, more PR propitious times -- the AFI Silver Docs festival.
Kaplan writes that the outtakes from the documentary-style movie “Crude” provide ample evidence of the Donziger’s efforts to manipulate the supposedly independent court-appointed expert’s report on environmental damages. The fact Donziger is a counsel in some proceedings is also not relevant here. From the order:
As an initial matter, Donziger is not representing the Lago Agrio plaintiffs before the Ecuadorian courts. He is not admitted to practice there. While he is a member of the New York Bar and presumably benefits from his legal training, there is abundant evidence in the outtakes that Donziger’s role in connection with events in Ecuador has been at least primarily in capacities other than that of an attorney. His principal functions have included lobbying, media and press relations, and politics. He has acknowledged in the outtakes that the purported civil litigation in Ecuador “is not a legal case. It’s a political battle” in which “[w]e need to get the politics in order in a country that doesn’t favor people from the rainforest.” On another occasion he said:
“Hold on a second, you know, this is Ecuador, okay. You can say whatever you want. In the end of the day, there’s a thousand people around the courthouse. You’re going to get what you want. * * * At the end of the day, this is all for the Court, just a bunch of smoke and mirrors . . .”
Donziger’s role at least in major respects is that of a political operative, not a lawyer. Moreover, Donziger admitted in March 2007 that he had not done legal work in two years. While this comment perhaps was offered in a somewhat jocular vein, there is substantial truth to it.
A prompt response is also warranted. The judge expresses serious concern about the fate of the two Chevron attorneys in Ecuador, who now face a preliminary criminal hearing on Nov. 10. In addition, the Lago Agrio plaintiffs are pushing to have a civil judgment entered against Chevron as soon as possible.
With U.S. District Court Judge Lewis Kaplan ordering the public release of outtakes from the anti-Chevron film “Crude,” blogger Bob McCarty wonders where the national news coverage is.
After all, if employees of a huge oil company had been in league with a right-wing director to produce a “documentary” to help fend off a multi-billion dollar lawsuit in a third-world court, that would be huge news. But when “Crude” director Joe Berlinger and the U.S.-Ecuador legal team led by U.S. trial lawyer Steven Donziger try but fail to suppress damning outtakes, footage that blows up their litigation shakedown, nothing.
To the mainstream media, I say, “Your bias is showing!”
To Mr. Berlinger, I say, “I hope you remember how much emphasis you placed on your First Amendment freedom of expression when you were vehemently opposing the release of outtakes from your film [To refresh your memory, click here or here]. When people start to air the outtakes from your film in YouTube videos, remember that those outtakes are now part of the public record and, therefore, protected by federal law.”
The principle of fair use can be invoked, as well.
As a former slothful journalist ourself, we tend to think laziness and passivity are just as common explanations as bias for the media failing to report the news. But in this case, no excuses. It’s a big story!