Lago Agrio: Judge Kaplan Rejects Demand for Jury Trial

Judge Kaplan has held that in light of Chevron’s decision not to seek damages, Donziger and the LAPs are not entitled to a trial by jury. I had previously questioned whether Judge Kaplan would accept Chevron’s waiver of its damages claims, which was framed in such as way as to suggest that Chevron might not waive its damages claims unless Judge Kaplan ruled that after a waiver there would be no jury trial. But leaving that point aside, it seems to me that Judge Kaplan’s decision is correct: as long as Chevron is seeking only equitable relief, FRCP 39(c)(1) forbids the Court to try the case to a jury without the parties’ consent. Judge Kaplan could empanel an advisory jury, but there seems to be no interest in that possibility, nor would it relieve him of the obligation to make written findings of fact.

The closest Donziger and the LAPs could come to a meritorious argument on this topic is on Chevron’s claim for unjust enrichment, which seeks disgorgement as a remedy. Disgorgement looks an awful lot like damages, but I think there’s no question that a claim for disgorgement via imposition of a constructive trust is an equitable remedy.

This decision is obviously a win for Chevron—it gives Chevron the benefit of a fact-finder who (Chevron thinks, with reason) is favorably disposed to Chevron’s narrative. The decision also avoids the possibility that a jury would be prejudiced by the evidence Donziger intends to put on concerning Chevron’s unclean hands. However, unless the trial is bifurcated (as best as I can tell, Chevron continues to seek bifurcation but the judge has not yet made a decision about it), this decision won’t keep Donziger from putting on that evidence.

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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