Chevron is back before Judge Kaplan, seeking a temporary restraining order in its RICO case against Steven Donziger, Hugo Gerardo Camacho Naranjo, and several of the Lago Agrio plainitffs. Recall that Judge Kaplan previously denied Chevron’s motion to attach the Lago Agrio plaintiffs’ interests in the Ecuadoran judgment. For Chevron, this is “once more unto the breach.” For the Lago Agrio plaintiffs—as they write in their brief—this is Groundhog Day (here is a link explaining the reference for our higher-brow readers, though I hope that no one is too high-brow to enjoy Groundhog Day!)
Recall that the last time around, the key issue was a lack of any showing that Chevron had been injured in any particular amount. Since it had not paid anything on the Ecuadoran judgment, the judge reasoned, it could not attach the judgment in any particular amount. This time, Chevron has lined up high-powered economics and law-and-economics types to show that the Ecuadoran judgment has a present market value, which can be calculated by determining how much investors have paid to acquire a piece of the ultimate recovery. This seems like a truism—a raffle ticket has a market value, too, that depends on the odds of winning the prize.
Chevron again seeks to attach the judgment, and more immediately, Chevron seeks a temporary restraining order pending a decision on the motion for an attachment. The motion for a TRO is to be heard on March 15. The immediate problem, to my mind, is this: what is the grave threat of irreparable harm that could justify a TRO? As far as I can tell, the plaintiffs have not sought recognition and enforcement of the Ecuadoran judgment anywhere in the world. Nor, given the posture of the case, does it seem that Chevron is incurring any necessary legal expenses at present to defend itself against the judgment. Its case for characterizing its current legal fees as an injury would be stronger if Chevron were playing defense to a claim for recognition and enforcement rather than playing offense in the BIT arbitration and the RICO lawsuit. To me, this lack of irreparable injury seems dispositive.
I will report in greater detail on the parties’ merits arguments, which go to Chevron’s motion for an attachment as well as its motion for a TRO, after the motion for an attachment is heard on March 27. For now, my best guess is that the motion for a TRO will be denied on the grounds that Chevron has not shown the necessary risk of an immediate and irreparable injury.