Lago Agrio: Jarndyce & Jarndyce, or Death-Cage Match?

Lawyer and Client illustration from Bleak House

Lawyer and Client in Jarndyce v. Jarndyce

Julian Ku of Opinio Juris participated in discussions about the Lago Agrio case at the recent ASIL meeting. Read the summary of his presentation (no longer available online) not just for his conclusion about what happened in Ecuador (he concludes that “Chevron seems to have been seriously wronged in the Ecuador proceeding”), but for an illustration of how difficult it is to come up with the right metaphor to describe the case. He notes that Professor Daniel Bodansky likened the case to Jarndyce v. Jarndyce, but he himself describes it as a “death-cage match”.

It’s true that the case has dragged on for many years, but given the amount of the Ecuadoran judgment, it’s impossible (I hope) that the case can end as Jarndyce ended, with all the money at stake eaten up by lawyers’ fees. Also, the Court of Chancery may have been slothful, wasteful, and out-of-touch, but its proceedings had a certain charm that I say is lacking in Judge Kaplan’s court, with all due respect to the judge. So I vote for death-cage match.

Photo credit: Wikipedia

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012.

4 thoughts on “Lago Agrio: Jarndyce & Jarndyce, or Death-Cage Match?

  1. Please see my comment below on Mr. Ku’s blog. Also, legal commentary on the case has become more and more about seemingly clever analogies and strategies and who is winning and losing. It’s clear the Ecuadorians are the losers even if they realize every cent of the $18 billion. The rainforest, thanks to Chevron, will never be the same, nor will the culture of the five indigenous groups impacted. But, hey, it’s just poor people in the jungle. Now back to Jarndyce v. Jarndyce.

    Pontificating attorneys and legal bloggers who claim to know enough to speak and write about the Ecuadorians’ lawsuit against Chevron should think twice. Ms. Lowe’s presentation and Mr. Ku’s blog omitted much information. For example, Texaco, now owned by Chevron, was the operator, and the only operator, of the exploration and drilling in Ecuador from 1964 to 1990. Petroecuador did not design the system nor did it operate the system that led to the intentional — not accidental — contamination of the rainforest. For this reason, the lawsuit was first filed against Texaco and Texaco only. It was filed one year after Texaco left Ecuador in 1993. The case has lasted 19 years because Texaco and now Chevron has fought it every step of the way.

    Nine of those years were spent before an Ecuador court in a trial that, if you believe Chevron, was fixed. Why a “fixed” trial would take nine years to fix is a question Chevron and its legions of lawyers have not answered and none of the legal bloggers has asked, curiously.

    Chevron’s fraud allegations are only that — allegations. They are based largely on less than one tenth of one percent of 600 hours of outtakes from the documentary Crude. The clips that Chevron parsed and edited have been taken out of context, blown out of proportion and, in one important clip, the Spanish was not translated correctly. But, these are details that legal bloggers, such as Mr. Ku, can’t be bothered with.

    Years before Chevron launched its legal attack in the U.S, the Ecuadorians leveled numerous fraud charges against Chevron for manipulating evidence and covering up the phony remediation that led to the agreement between Texaco and Ecuador that legal bloggers love to write about. Only problem is during the trial tests showed contamination at the so-called “cleaned” sites as high or higher as the non-remediated sites. Plus, the agreement clearly stated only government claims had been released, not third-party claims such as ours. But, never mind that’s a detail that legal bloggers would rather ignore.

    This link — http://tinyurl.com/d7jvvra — provides responses to Chevron’s charges.

    This link — http://bit.ly/HcSsSc — summarizes some of the charges leveled against Chevron.

    If you’re interested in learning about the remediation, please go this web site:http://chevrontoxico.com/news-and-multimedia/2011/0302-press-kit-for-texacos-sham-remediation.html

    You also can watch this 15-minute video about the case at http://www.chevrontoxico.com.

    But just because you sat through a panel discussion and read a few of Chevron’s legal briefs and press releases, do not presume to think you know enough about this case to write conclusively about it — especially when you haven’t spoken to the attorneys or the people there and haven’t seen the contamination for yourself. Throwing around fraud charges without understanding the complexity of the case is dangerous and highly unprofessional.

    Karen Hinton
    U.S. Spokesperson for the Ecuadorians

    1. Karen, thanks for commenting. The strategy of your comment is to argue that Julian Ku and other bloggers don’t know what they’re talking about because they “haven’t spoken to the attorneys or the people there and haven’t seen the contamination for [themselves],” and that all one needs to do is read the documents you’ve cited to see the rights and wrongs of the case. Now, I haven’t read all of the documents cited in the footnotes to see whether they support the propositions for which you cite them. But I took a look at one that was of particular interest, just to see: the Staats report that is the basis for the claims about the independence of the Ecuadoran judiciary. You cite the report for the following proposition: “Even the U.S. State Department, in its an annual human rights reports, agrees that Ecuador’s courts are independent—a conclusion justified by almost every metric used to measure the independence of a country’s judiciary available to academics who genuinely study the issue.” As I noted in my post on the Cassel affair, the Staats report is hardly clearcut. What does Professor Staats actually say? He looks at the so-called CIRI dataset, which claims to measure the independence of judiciaries around the world. On a scale from 0 (not independent) to 2 (generally independent), Ecuador scored a 1 (partially independent) each year from 2004 to 2009, except for 2006, when it scored a 0. This may compare favorably with other Latin American judiciaries, but it is hardly a ringing endorsement. So the bottom line, which is not apparent from your report, is that there is a case to be made that there are systematic issues with the Ecuadoran judiciary. Now, that doesn’t mean that you lose that issue. Maybe a finder of fact will ultimately conclude that there were no systematic problems with the judiciary sufficient to call the Ecuadoran judgment into question. Or maybe it doesn’t matter whether there were systematic problems with the judiciary, because Chevron is estopped. But the bottom line is that there is a real dispute to be litigated, which isn’t apparent from the black-and-white tone of your comment.

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