Lago Agrio Updates

There were several Lago Agrio updates last week while I was away on vacation. So as not to keep you in suspense, I’m going to summarize most of them in a single post (stay tuned Wednesday for a post on a new Fifth Circuit decision arising out of the case).

Chevron Narrows Its Claims In Judge Kaplan’s Court

The Lago Agrio plaintiffs have recently pointed to a January joint filing in which Chevron made it clear it was not seeking to prove that the conclusions the Lago Agrio court drew about the environmental harms suffered by the plaintiffs were untrue or incorrect. The purpose of this concession is to support Chevron’s argument that discovery into the underlying environmental issues is irrelevant and therefore impermissible under FRCP 26. I didn’t cover the point when it was new, but as the plaintiffs are now focused on it, let’s take a look.

The plaintiffs trumpet this as an important defeat for Chevron. I think things are more nuanced. On issues relating to recognition and enforcement of the Lago Agrio judgment, I agree with Chevron that the underlying environmental issues are irrelevant; all Chevron needs to show is that the judgment was procured by fraud or that the Ecuadoran courts were not impartial or did not provide due process. But on the RICO case, I think the environmental facts could well be relevant to causation. Suppose that a perfectly fair court would have reached exactly the same conclusion as the Lago Agrio court reached. Has Chevron suffered any real damages (aside, perhaps, from the fees incurred in seeking to prove the judgment is not entitled to recognition and enforcement, which are not insignificant?) If I were the plaintiffs’ lawyer, I would say that because Chevron is not contesting the underlying environmental conclusions, it cannot prove that it is entitled to recover the principal amount of the Lago Agrio judgment on a RICO claim from Donziger or anyone else, because it cannot prove that it would not have been liable for those damages but for the supposed RICO violations. We’ll see how this plays out.

Donziger Gets Sued (Again)

Once more unto the breach! New Orleans lawyer F. Gerald Maples has sued Steven Donziger in Louisiana. According to Maples, Donziger met with Maples in 2010 and engaged him on a contingent fee basis to handle parts of the Chevron litigation. According to Maples, Donziger breached the fee agreement by failing to pay the percentage agreed and failing to reimburse Maples for out-of-pocket expenses. Donziger’s co-defendant, North Carolina lawyer William Carmody, removed the case from the state court to the Eastern District of Louisiana, with Donziger’s consent. Donziger has not yet answered. Carmody has answered, but his answer seems to miss what seems to me the obvious defense, namely, that the parties had agreed to confidential arbitration of such disputes. The fact that Maples sued rather than sought arbitration is curious; we will have to wait and see whether there are hidden agendas here. According to the docket sheet, Donziger is being represented by Letters Blogatory contributor Aaron Marr Page of Forum Nobis.

Donziger Get Sued (Again) (Again): The Huaorani Re-file

The Huaorani have re-filed their claim against Donziger in the New York Supreme Court. I outlined the claim in a post from July 2012. As I noted in an earlier post, Judge Kaplan had denied their motion for leave to intervene in Chevron’s action against Donziger, and the federal courts lacked subject-matter jurisdiction over their claim standing alone. Judith Kimerling has rightly made a point of emphasizing the importance of treating indigenous groups one represents as real clients in control of their litigation rather than as pawns and of keeping them fully informed; I wonder whether it was possible to explain to the Huaorani the procedural meanderings of their case thus far. I am not sure it would be possible to explain matters to anyone other than a civil procedure geek.

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 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is 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, 2014, and 2015.

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