Lago Agrio: Zambrano Strikes Back

Friday’s post was ill-timed. I wrote about the Lago Agrio plaintiffs’ responses to the Guerra Declaration, little knowing that on April 4 the Lago Agrio plaintiffs had filed what I have long been hoping they would file: a declaration from Judge Nicolás Zambrano Lozada, the target of Guerra’s main accusations of judicial corruption. Here are a few highlights.

  • On the appointment of experts: “When there were differences of opinion, basically about appointment of expert witnesses, I held meetings with both parties in my office. In the presence of the parties, the expert witnesses were assigned at random or differences were resolved. Everything was transparent and in accordance with statutory law and equity.” I am not sure what it means to assign an expert witness “at random,” but in any event this is a clear denial of judicial shenanigans regarding appointment of experts, at least during the times Judge Zambrano was presiding.
  • On when he wrote the judgment: “In December 2010 I entered an announcement that the record was closed and that I was considering the judgment, which does not mean that I began writing my ruling at the same time. As I said, I had been working on the preparation of the ruling for some time. In January 2011, newspaper reporters frequently asked me whenever they saw me at Court when I would issue the judgment. Simply as a strategy to keep them at bay with these types of questions I told them that I still had to examine about five hundred volumes, but I actually had concluded reviewing the record and was polishing the draft of the judgment.” Seems plausible, no?
  • On the authorship of the judgment: “I confirm that I am the only author of the judgment that I issued on February 14, 2011, and of the clarification that I issued on March 4, 2011. I did not receive support or assistance from Dr. Alberto Guerra or from any other person, much less from the litigant parties. It is not true that Dr. Guerra reviewed the judgment, since neither he nor anyone else reviewed it before it was issued. It is false that Dr. Alberto Guerra worked in my home. He has never entered my house in Lago Agrio or in any other province for any reason.” This doesn’t answer all questions about authorship, as Chevron has sought to show that the judgment incorporated text written by others, but nevertheless, the declaration is some evidence that Zambrano himself wrote the judgment that bears his name.
  • On soliciting bribes: “I have never told Dr. Guerra to approach the parties to ask them for money.”
  • On being offered bribes: On August 14, 2012, Dr. Alberto Guerra Bastidas gave me a folder of documents with the business card of an attorney, Andrés Rivero. Dr. Guerra told me that Mr. Andrés Rivero was an attorney who worked for Chevron. He also told me that Chevron was offering me a minimum of one million dollars to start, or for me to name the amount, whatever I wanted or, if I preferred I could travel to the United States, which they would pay for, to talk to them there in exchange for a statement in favor of Chevron. I did not accept the proposal. After that, Dr. Guerra called me two more times to inquire about my answer. When I absolutely rejected the proposal, he did not ever call me again.”

Zambrano also authenticates the transcript of a telephone call he received from Rivero, in which it seems Rivero is asking for his help on behalf of Chevron and also subtly threatening him by noting that “major news in the case” was about to break, and that when it broke “[e]veryone in this case will be protecting themselves. … [N]ext week … the scenario changes completely …” In other words, play ball or else. As I have previouly noted, Chevron has been aware of the existence of the transcript for a while and has already responded with a declaration from Rivero himself. Readers can judge the transcript for themselves, but it does seem threatening, in a non-specific kind of way, to me.

Why is this important? Well, nothing Zambrano has to say changes the problems I and others have identified with the Cabrera report, the Calmbacher report, etc. There is still strong reason to believe that the plaintiffs themselves were guilty of apparent misdeeds in Ecuador. But in light of Zambrano’s declaration, I think we really can’t say with any assurance that there was or was not judicial corruption in the case. If anything, it seems to me that Zambrano’s declaration has more intrinsic credibility than Guerra’s. “Guerra tried to get me to join in his corruption but I refused” is more credible, on its face, than “both Zambrano and I were corrupt,” because if Guerra admits he is corrupt why believe anything he says? But ultimately it seems to me that this is not a question that could be resolved (in the United States, anyway) without a trial on the merits.

But if you think, as I do, that the law should require a foreign litigant to make arguments about an opponent’s fraud to the foreign court as long as the foreign judciary is “systematically adequate” (roughly, not corrupt and of at least a minimum acceptable quality), 1 then Zambrano’s declaration is pretty important for the plaintiffs. It provides a basis for asserting that the Ecuadoran court itself was not corrupt, at least while Judge Zambrano was in charge. Again, I have no idea if that is so or not, but at least the plaintiffs can now make the argument. And if they win, I think they could try to argue that it’s not for the US courts, or any other courts outside Ecuador, to pass on the validity of the Ecuadoran judgment.

It’s also worth noting that from a PR perspective it is highly useful for the plaintiffs to be able to turn the tables and credibly accuse Chevron itself of seeking to corrupt the judicial process. The telephone call is a nice touch, and we will eagerly await Chevron’s further response to it.

Notes:

  1. To be clear, I am saying that this is what the law should be, not necessarily that this is what the law is. Moreover, I am not now making the point that a foreign litigant should be required to make arguments about an opponent’s fraud to the foreign court even if the foreign judiciary is not “systematically adequate” on an estoppel theory, at least in cases that were transferred to the foreign country at the complaining party’s insistence. And I am not saying that the Ecuadoran courts pass muster even if Judge Zambrano was completely honest—there are other reasons, e.g., the political pressure on the courts from the Correa administration, to worry about the adequacy of the Ecuadoran courts.

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.

3 thoughts on “Lago Agrio: Zambrano Strikes Back

  1. As a general matter, I’d agree a trial on the merits would be warranted, but that’s not how federal courts work these days. Federal courts routinely grant summary judgment against plaintiffs alleging fraud when they are unable to muster evidence beyond an uncorroborated witness, holding that the proof cannot possibly be ‘clear and convincing,’ as required by many state’s fraud precedent.

    1. I think that in light of the dynamics between Judge Kaplan and the Second Circuit, he is unlikely to grant summary judgment. Why give the Circuit a de novo review?

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