Lago Agrio: Patton Boggs On Offense

Patton Boggs, counsel to the Lago Agrio plaintiffs and now a target of Chevron in New York, has taken the offense in recent days, pushing back against the declaration of Christopher Bogart, the CEO of Burford Capital (the LAPs prior litigation funder), which basically threw Patton Boggs under the bus by claiming that the law firm had persuaded Burford to invest in the litigation by defending the supposedly independent Cabrera report. In a motion filed on Thursday, first reported by Jan Wolfe, Patton Boggs and the LAPs moved to strike the Bogart declaration, to lift the protective order that now protects Burford’s documents from public disclosure, and for other relief. The brief is very well-written. Here is a long excerpt of the introduction:

Burford’s internal communications reveal that it believes Patton Boggs has done nothing wrong. In fact, up until March 2013, Bogart and Burford continued to seek out opportunities to collaborate with Patton Boggs, and recommended James Tyrrell, the firm’s lead partner on the Ecuador matter, to others. Burford’s documents also reveal that Burford was not nearly as under-informed as Bogart suggests. Contrary to his Declaration, Bogart and others (redacted) before Burford’s investment closed. Similarly, Bogart now claims that he was horrified to learn of “fraud accusations leveled by Joseph Kohn, one-time financier of the Lago Agrio Plaintiffs. But when Kohn’s allegations went public, Bogart expressed interest in buying out the disgruntled Kohn’s stake at a discount.

Why, then, did Burford spurn the Lago Agrio Plaintiffs? And why, almost two years after terminating its relationship with the Lago Agrio Plaintiffs, has Burford now agreed to help Chevron attack Patton Boggs? The answer originates in two personnel changes that occurred at Burford in January 2011. At that time, Burford’s then-Chairman, Selvyn Seidel, left the firm. Seidel, who took an interest in human rights litigation, championed Burford’s investment in the Ecuador matter. Burford’s other principals, particularly Bogart, were (redacted). Even more impactful than Seidel’s departure, however, was the fact that at roughly the same time, Burford welcomed a new Managing Director, Ernest Getto—who happened to be one of Chevron’s outside counsel.

Before Chevron had even filed its RICO case, Burford established a direct line to Chevron through Getto, all the while pretending to support the Lago Agrio Plaintiffs publicly.
While Burford’s capitulation was motivated at least in part by Chevron’s efforts to (redacted), the firm from which Getto was arriving, Bogart’s inherent distaste for the Ecuador investment made it easy for Chevron to co-opt Burford. In preparing Getto for (readcted), Bogart expressed frustration that (redacted). Days later, after Chevron filed its RICO case labeling Patton Boggs a “non-party co-conspirator,” Bogart emailed (redacted) to Randy Mastro of Gibson Dunn.

Despite its private alliance with Chevron, however, the publicity of Burford’s historic investment in the Chevron/Ecuador matter continued to undercut the firm’s mission, as would-be clients (redacted). Burford also feared that its high-profile Ecuador investment might (redacted), which could impair the viability of litigation financing in key states. Apparently to get the firm back into the good graces of its target market, Burford has now transitioned from supporting Chevron privately to actively undermining the Lago Agrio Plaintiffs.

The Bogart Declaration is the centerpiece of a public-relations stunt. Before Chevron filed the Bogart Declaration on this Court’s docket, it already had shared with journalists and bloggers a press release announcing Burford’s “flip.” The primary objective of this stunt is to pressure Patton Boggs into denouncing its clients, the Lago Agrio plaintiffs—just like Burford did, and just like Stratus Consulting did weeks before it. The Declaration could not have been intended to accomplish anything legitimate vis à vis this litigation. Chevron had to know that the Bogart Declaration’s charge that Patton Boggs led Burford up the garden path would, like its other claims, be proven false by reference to Burford’s own documents.

Although the Bogart Declaration can be discredited in court, Chevron undoubtedly believes that its PR coup cannot so easily be undone. To that end, Burford has designated virtually all of its documents “confidential,” requiring them to be filed under seal and shielding them from public scrutiny. These designations do not guard trade secret or any similarly worthy business interest. Rather, they seem designed to (a) impair the Lago Agrio Plaintiffs’ capacity to publicly rebut the Bogart Declaration’s accusations, and (b) protect Burford from the embarrassing revelation that it was secretly (redacted) its clients’ litigation adversary with the hope of (redacted).

I for one would like to see what’s behind the redactions here, and if Patton Boggs is successful I may get my wish. Let the sun shine in, I say! I am particularly interested in a question of timing. Patton Boggs claims that the Bogart declaration was prompted by Burford’s need “to get [itself] back into the good graces of its target market.” But as we know, Burford claimed that the LAPs, Donziger, and their US representatives had committed a fraud in September 2011. So is there some reason for the long gap between the September 2011 letter and the Bogart Declaration? Or is the gap just a function of the procedural posture of the dispute between Chevron and Patton Boggs?

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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