Lago Agrio: What Goes Around Comes Around

Although all eyes are on the RICO case in Judge Kaplan’s court, other bits and pieces of the Lago Agrio case are proceeding in courts and arbitral tribunals around the world. One particularly interesting piece of the case is the case of the Huaorani people against Steven Donziger, which I’ve covered before. Very briefly: in 2012, a group of the Huaorani people (one of the indigenous groups claiming to have been injured by Texaco’s pollution in Ecuador), represented by Judith Kimerling, sued Donziger in the Southern District of New York. The claim was that Donziger and the Frente de Defensa de la Amazonia—the ADF or Amazon Defense Front—had falsely represented to the Ecuadoran court that the ADF represented the interests of all the plaintiffs, including the Huaorani, and on that basis, the Ecuadoran court had made the ADF the beneficiary of a trust established by the judgment and directed Chevron to pay ADF an additional 10% of the aggregate value of the environmental remedial measures it ordered, totaling more than $864 million. But, they claimed, neither Donziger nor the ADF was authorized to represent them. The Huaorani later voluntarily dismissed their case when it became clear that the court lacked subject-matter jurisdiction (because there were aliens on both sides of the case). They sought leave to intervene in the RICO action, but Judge Kaplan denied the motion. They then sued in the New York Supreme Court, and that case is still pending.

In my first post on the Huaorani case, I raised an interesting possibility:

Third, and this is really my most devout wish, what are the chances that Donziger will seek to dismiss the case on forum non conveniens grounds, or otherwise asks the US court to defer to the Ecuadoran courts? At face value, this does seem to me to be an issue that is properly put to the courts of Ecuador, and an FNC motion would really bring the case full circle. Maybe that’s too much for an observer to ask!

Well, it was not too much to ask. A source (I’m not sure if the source wants to be identified, so I won’t) pointed me to Donziger’s motion to dismiss, which, I am gratified to say, does indeed seek dismissal on forum non conveniens grounds. The opposition’s discussion of Donziger’s citation to Aguinda is an enjoyable read:

Remarkably, Defendants’ recurring references to Aguinda ignore the revealing developments that have occurred over the last decade, including well-documented misconduct by Donziger himself to “intimidate,” “pressure,” and “humiliate” judges and manipulate the judicial process in Ecuador.

* * *

Defendants’ forum non conveniens motion is nothing more than a not-so-subtle effort to force Plaintiffs to seek relief in a foreign jurisdiction, where Defendants know full well that there is no prospect of a fair day in court due to Defendants’ strong political connections and their willingness to play “dirty” in order to manipulate and corrupt the judicial process. Simply put, Defendants’ motion seeks to leave Plaintiffs with a remedy that is “so clearly inadequate or unsatisfactory that it is no remedy at all.”

The motion is pending. The irony is thick.

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 2012), 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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