Lago Agrio: Patton Boggs and Burford Redux

In June I reported on Patton Boggs’s attempt to show that the Bogart Declaration, which Burford Capital submitted after it turned on Donziger and the LAPs, was—not to put too fine a point on it—a PR hit job intended to smear Patton Boggs, based on outright falsehoods. Unfortunately, Patton Boggs’s brief was heavily redacted. “I for one would like to see what’s behind the redactions here,” I wrote.

Wishes can come true! Due to a stipulation of the parties, a much more lightly redacted version of Patton Boggs’s brief has now been filed. It’s a good read. I want to focus on the juiciest part, the discussion of Patton Boggs’s view of Burford’s motives in turning to the dark side (as Patton Boggs would see it). Patton Boggs offers two reasons. First, in January 2011, Ernest Getto, who had been a partner at Latham & Watkins and who had represented Chevron in signficant matters, became a managing director of Burford. Chevron had “raised concerns” with Getto about his new role at Burford because of Burford’s role in the Ecuador litigation. According to Patton Boggs, Chevron “used its relationship with Getto’s former firm, Latham & Watkins, as a pressure point to cause Burford’s capitulation.” Getto was told that Chevron “was being punitive” with Latham, and that Chevron had “blackballed” Latham “due to Burford.” Bogart “struck a repentant tone” with Chevron about Burford’s continued involvement in the case, making it clear that the case was “not a typical matter for Burford” and that Burford “would not necessarily be displeased to see Chevron attack Patton Boggs.” But, Bogart told Chevron, Burford felt “stuck” because “neither Chevron nor any court has taken any action against Patton Boggs—there are no sanctions, there is no Rule 11 order—indeed, there are no allegations from Chevron of any wrongdoing on Patton Boggs’s part.” And voilà—five days after a key meeting between Burford and Chevron, Chevron filed its RICO case naming Patton Boggs as a non-party co-conspirator. And when Chevron, less than a week later, obtained a TRO from Judge Kaplan, which was obviously not in Burford’s financial interest, Bogart wrote to Chevron’s lead lawyer, Randy Mastro, “Randy—Congratulations on a superbly executed campaign!” Yikes!

Second, Patton Boggs asserts that Burford switched sides because it thought that its involvement with plaintiffs’-side tort work, particularly given the left-wing connotations of the case, would be bad for business. Burford at first thought it had little reason to worry, because, according to Getto, “no one believed that Burford’s investment, or its terms, would become public knowledge.” But when friend-of-Letters-Blogatory Roger Parloff of Fortune Magazine started asking questions, Burford got “spooked” because of what it saw as Parloff’s “proclivity to write ‘opinion masquerading as news story.'” 1 “In light of all the unwanted attention, Burford became desperate to dissociate from the case.”

What I find interesting about this is that it is basically taking a play out of Chevron’s own playbook—reverse the narrative, and go from defense to offense.

I suppose my next project is going to have to be to take a look at Chevron’s earlier responses to these points. This may take a while, but for any enterprising reader who wants a head start, here is the document.

Notes:

  1. The brief goes on to make some additional non-flattering comments about Parloff’s work, noting particularly that Chevron’s PR people were feeding documents to him. From my own experience, I can say that the PR people from both sides feed stuff to the press—did I just include myself in “the press?”—so I think this is probably not a fair criticism.

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.

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