Response to Aaron Marr Page

Many thanks to Ted Folkman and the symposium contributors for a rich discussion.  Here I respond to Aaron Page’s post.  Later I will comment on Ted’s posts and comments addressed to me.

In Page’s rhetorical view, the fraud in the Ecuadorian litigation against Chevron was a triviality in a teapot that should not deter US judges from enforcing the resulting Judgment.  He defends his co-counsel by implying that they are merely innocent inhabitants of an imagined worldwide conspiracy.  He goes so far as to suggest that impugning Ecuador’s battered judiciary is “racist”. Each point merits a response.

First, Page hyperbolizes that “[e]very argument Chevron lost at trial” in Ecuador becomes an instance of fraud.   Yet the examples in my post—plaintiffs’ forging and falsifying their own expert’s testimony; their ghost writing the testimony of the court’s “independent” expert; their paying him hush money from a secret account; and their Judgment, portions of which can only have come from plaintiffs’ internal files—would be fraud in any court.

Second, Page takes comfort in the possibility that the fraud was “intrinsic” fraud (as opposed to “extrinsic” fraud), and hence not a ground for non-enforcement of the Judgment in the US under the 1962 Uniform Act.  If plaintiffs had committed their fraud unilaterally, and deceived the Ecuadorian courts, Page would clearly be right: that would be intrinsic fraud.  But in fact, the evidence indicates that plaintiffs acted in collusion with the Ecuadorian court.  Because the fix was in, Chevron did not have an adequate opportunity to present its case.  The collusive fraud was thus arguably “extrinsic fraud,” which is grounds for non-enforcement under both the 1962 and the 2005 Acts.

In any event, as Page recognizes, under the 2005 Act, intrinsic fraud may be grounds for non-recognition when it amounts to “circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment,” or the proceeding “was not compatible with the requirements of due process of law.”  Plaintiffs’ fraud in Ecuador easily meets both standards.

In addition, at least under the 2005 Act, the Ecuadorian Judgment should be unenforceable in the US for violating public policy.  As the commentary explains, “Public policy is violated … if … enforcement of the foreign-country judgment would tend clearly to injure … the public confidence in the administration of law, or would undermine ‘that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.’” Again, the collusive fraud in Ecuador meets both standards.

Page next complains that his co-counsel are being vilified as members of an imagined worldwide conspiracy that includes “all” plaintiffs’ lawyers, “including such prominent firms as Patton Boggs.”  For a “full roster of the conspiracy,” Page refers readers to my post.  In fact, my post explicitly alleged misconduct only by “some (not all) of plaintiffs’ lawyers.”  And as Page well knows, I have expressly exempted both Patton Boggs and Page from any accusations of misconduct.  As stated in my publicly posted reply to his earlier letter,

References herein to plaintiffs’ lawyers, and to the misconduct specified herein, do not include the law firm of Patton Boggs or any of its lawyers who represent plaintiffs in various proceedings before U.S. courts, Forum Nobis PLLC [Page’s law firm] or any of its lawyers, or other law firms and lawyers who began to represent plaintiffs only recently.”  I likewise do not suggest that those law firms or lawyers participated in the misconduct described in this letter. …

Finally, Page complains that US judges are apt to give more credence to British than to Ecuadorian courts.  “This sort of double standard,” he objects, “is inappropriate and troubling. To be blunt, it is seen by the Ecuadorians as part and parcel of the arrogant and even racist mentality …”

But to admit that Ecuador’s judiciary is not equal to Britain’s is not racism; it is reality.  For example, the current State Department Country Report on Human Rights in Ecuador reports “credible allegations” that

verdicts delivered by judges were not actually written by them. In the libel suit brought by President Correa against the newspaper El Universo … the presiding judge published a 156-page decision 25 hours after the hearing. In similar cases such decisions usually take at least two weeks (and often significantly longer) to produce. The defendants alleged that the decision was not written by the presiding judge, but rather copied onto the judge’s computer from an external memory device.

Does that sound like a judiciary equal to Britain’s?

And if Page’s point is that not that he, but that Ecuadorians, have high regard for their judiciary, he should consult Ecuadorians.  According to Latinobarometro, only three in ten Latin Americans have confidence in their judiciaries.  The figure is almost certainly lower in Ecuador.

About Douglass Cassel

Douglass Cassel is Notre Dame Presidential Fellow and Professor of Law at the University of Notre Dame Law School. He was also an advocate for Chevron in proceedings before the Inter-American Commission on Human Rights.

One thought on “Response to Aaron Marr Page

  1. For the record, all of Professor Cassel’s allegations of “fraud” and misconduct are false. Please see my response to his earlier post and the links therein, including the plaintiffs legal team’s detailed response to his allegations available http://opiniojuris.org/2012/03/28/chevrons-buyers-remorse/casselfinal-2/.

    Some of Cassel’s/Chevron’s allegations are indeed so absurd and offensive that they strike many as reflecting racist underlying assumptions. For example, one of the “forensic” reports Chevron submitted in support of its charge that the Ecuadorian trial judge was corrupt simply estimates the number of words in the Lago Agrio record, divides by the words per minute an average person reads, and “concludes” the judge did not have had time to read each and every word in the 200,000-page record before issuing judgment and thus must not have written the judgment. This simply assumes away such possibilities as, say, the court felt it could skim repetitive portions of the record, or relied on executive summaries of lengthy reports, or otherwise choose for itself what to read and what not to read. Other “forensic” reports are similarly specious. Try to imagine this sort of material being used to bring fraud charges against a judge in the United States and you get a glimpse of the sort of double standard that many see as reflective of racist underlying assumptions.

    Re the El Universo case, I will just say that the fact that Cassel is left to attack the Aguinda case by referring to the facts of the entirely unrelated matter shows just how desperate he and Chevron are for something, anything to support the Hindenberg of outlandish fraud allegations they have inflated and that is now drifting toward the inevitable.

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