Comments on: A First Look at the Donziger Decision

By: Lago Agrio: Court Holds Donziger Liable For More Than $800,000 In Costs | Letters Blogatory

Sat, 16 Nov 2024 20:40:06 +0000

[…] in New York (as I reported earlier) and that the bar is seeking to give Judge Kaplan’s findings of fact in the RICO case preclusive effect, which would be devastating, and to temporarily suspend Donziger […]

By: Ted Folkman

Ted Folkman — Fri, 07 Mar 2014 16:10:34 +0000

In reply to Max Kennerly. Thanks, Max. I agree with you that from a layman's point of view the "boomerang" aspect of this case is puzzling. We had a really interesting discussion about this back in 2012 as part of the Letters Blogatory symposium on forum non conveniens and recognition of judgments.

By: Ted Folkman

Ted Folkman — Fri, 07 Mar 2014 16:08:47 +0000

In reply to walker. Walker, thanks for the comment. I agree with you that there is a serious issue of professional misconduct here given the judge's findings. I won't hazard a guess on what the Second Circuit will do. Bear in mind that references to "Chevron's" assets probably have to be made more precise in light of the attention courts in the US and Canada have paid to the corporate form in this case.

By: walker

walker — Wed, 05 Mar 2014 23:34:48 +0000

I thought it was telling that Kaplan’s opinion at one point cites the New York rules governing the conduct of lawyers and insinuate that Donziger had committed professional misconduct. I agree that the expert report is damning, but I don’t see the Second Circuit (or even SCOTUS) allowing this injunction to stand. Even if it does, Chevron is ultimately going to have to settle this case or see its assets threatened in countries with courts that are unsympathetic to the US courts’ equitable jurisdiction.

Very interesting saga. Hardly seems like we’ve reached the halfway point too!

By: Max Kennerly

Max Kennerly — Wed, 05 Mar 2014 18:08:17 +0000

Judge Kaplan pretty much had to hold that the entire Ecuadorian judiciary was corrupt and incapable of producing a just result, otherwise Chevron’s case would fall apart, given (1) the case was there, and not here, because Chevron assured the U.S. courts they would abide by the judgment, and thus they’ve waived anything but a full-fledged denial of due process claim by the whole judiciary there and (2) the Supreme Court of Ecuador has already affirmed the judgment, despite all the same allegations.

Judge Kaplan’s de facto worldwide injunction, which precludes any of the defendants from recovering any proceeds regardless of the source, strikes me as similarly dubious. That’s a damages award, not an injunction. Chevron waived that, too, to avoid a jury trial.

I don’t see other nation’s tribunals responding to this favorably: they would have to similarly hold that Ecaudor’s courts are wholly unreliable, and they’d have to ignore the decades of procedural games that were required to get here, starting from Chevron’s play to move the case to Ecaudor in the first place and ending with their last-minute waiver of a damages claim to avoid a jury trial.

IMHO, the whole set up is internationally embarrassing. Call up a non-lawyer friend in another country and try to explain to them the whole case, from Chevron getting it kicked out of the US to forum shopping in the US again and then waiving damages and then the worldwide injunction on proceeds, and they’ll ask you why the U.S. thinks it gets the last word on everything.