A First Look at the Donziger Decision
Posted on March 5, 2014
Many readers will already have read about Judge Kaplan’s findings of fact and conclusions of law, which found that Steven Donziger and the Lago Agrio plaintiffs violated the RICO statute and enjoined them from benefiting from the Ecuadoran judgment or from seeking recognition of it in the United States. Yesterday was quite clearly a big day for Chevron and a crushing, though not unexpected, defeat for Donziger.
I read about the decision while I was in court, waiting for the judge to take the bench. Right after court, I had to run and catch a plane, which gave me a good three hours to read the decision. Good timing, too, as I was on my way to a Florida law school to give a presentation on the use of § 1782 proceedings in the Lago Agrio case! The decision is long and detailed, and I don’t think anyone can be in a position to give a detailed analysis only one day after publication. Here, though, are my initial thoughts.
Judge Kaplan came to the right conclusion about the Cabrera report, which was, apparently, the original sin in the Lago Agrio case. There are lots of commentators who are less sympathetic to the LAPs than I have been, but even I have been saying for quite some time that it was evident that Donziger and his team had acted wrongfully by trying to conceal the true facts about the Cabrera report and it’s lack of independence. The broad outlines of this part of the story have been known for a long time, but Judge Kaplan does a very good job of marshaling the evidence and presenting it as a coherent whole.
On the issue of ghostwriting of the Zambrano judgment, I’ve previously expressed skepticism about Chevron’s position, mostly because its star witness, Judge Guerra, seemed to lack credibility. I also raised some technical objections to some of the evidence that Chevron claimed collaborated Judge Guerra’s testimony. But Judge Kaplan heard the testimony of all of the relevant witness and made careful findings about credibility (though he didn’t deal with the technical issues about the admissibility of some of the corroborating documents), and here I think it is fair to accept his findings. If you believe Judge Guerra’s testimony, and if you disbelieve Donziger’s and Zambrano’s testimony, then Chevron has proved its case on ghostwriting. I don’t see any reason to try to second-guess the fact-finder’s credibility determinations, since he, after all, heard the testimony in person and was well-placed to judge credibility.
I continue to question Judge Kaplan’s approach to the Ecuadoran judiciary. Judge Kaplan deployed the strongest weapon in the arsenal by holding that Ecuador’s judiciary was not impartial and did not provide due process. The effect, I think, is to deprive every Ecuadoran judgment of the possibility of recognition in the United States. And while the judge does marshal the evidence of President Correa’s favoritism towards the plaintiffs, there is no actual direct evidence that he told anyone how to rule in the case. And there is no evidence, as far as I can tell, of bribery or extortion in the Ecuadoran appellate courts. Indeed, the whole notion of a politically motivated decision seems at odds with a key part of Judge Guerra’s story, namely that he first solicited a bribe from Chevron before seeking one from the LAPs. As I’ve said before, this kind of simple graft hardly seems sufficient to indict the whole Ecuadoran judiciary as a political creature of the President.
There is plenty of room for a successful appeal, on issues ranging from Chevron’s standing to bring a RICO case for equitable relief to challenges to the judge’s findings of fact. So the next stop is the Second Circuit. Keep your eye on the recognition and enforcement proceedings in Canada and elsewhere–it will be interesting to see what use Chevron tries to make of Judge Kaplan’s findings.
As I said at the outset, these are initial thoughts, and I hope to have more once I get back to Boston and have some time to study the opinion. Comments from readers are welcome in the meantime!